Should a license be required for computer programmers

Employment contract with an employed software programmer

 In this article, you will learn what to look out for when drafting contracts with software developers from a legal point of view.

Who owns the software? Or legally: Who is the owner of the copyright rights to use software that is used within the framework of a Employment relationship or one freelance work was developed? So who is allowed to market the end product economically and ultimately distribute the proceeds? These questions often arise in practice. Since there is often a lack of concrete contractual agreements, there is a risk of unnecessary disputes, which may delay the timely market entry of a product and thus reduce its success.

 

The following article explains the legal pitfalls of employment contracts with an employed programmer. In a further article you will learn the legal features of contracts with free software programmers (freelancer contract).

 

Principle - the programmer is the rights holder

According to the creator principle applicable in German copyright law, the creator of computer programs is always the creator of the program, i.e. the programmer of the respective program, Section 7 of the Copyright Act (UrhG). As a natural person or a group of natural persons, he or she is the owner of all rights of use to this software and can decide whether and under what conditions it is published, distributed, reproduced and used - in short: the work is commercially exploited, §§ 69c, 15 UrhG .

 

Special situation of the employed programmer

If a programmer develops software as part of an employment or service relationship, the situation is somewhat different. The reason for this special position is that the work result - the computer program - is usually protected by copyright. So who are entitled to the rights to use the program? The starting point for answering this question is § 69c UrhG:

 

Section 69b of the Copyright Act: Authors in employment and service relationships
(1) If a computer program is created by an employee in the performance of his duties or according to the instructions of his employer, then only the employer is entitled to exercise all property rights on the computer program, unless otherwise agreed. (2) Paragraph 1 shall apply accordingly to employment relationships.

 

Thereafter, the employer alone is entitled to all rights of use for the commercial exploitation of the software developed by his employee. As a result, he decides how the product will be used, for example whether it is under a proprietary or a free license (OSS). The normally necessary contract for the express transfer of the rights of use from the programmer as the author to the employer is therefore not required.

Although § 69b UrhG grants the employer all property rights, it is not entirely clear whether the employer is also given the right to change, edit, distribute and distribute the software and to pass on his rights of use to third parties. Clarification therefore only creates a clear contractual clause.

 

Regulate rights to software in the contract

As a “consideration” for his intellectual work, the programmer-author receives his contractual remuneration, with which the transfer of rights is basically settled. Even if he changes employer or is self-employed, he is not allowed to use the program created by the original employer. This means that the programmer is completely excluded from exploiting the program he has created.

If the employment contract with a programmer does not contain a clause on the assignment of the rights of use to the software to be developed, the general case of Section 69b UrhG applies: the employer is the owner of the rights. Agreements with a differentiated assignment of rights to the software are permissible, but must be expressly stipulated in the contract.

If program-related inventions from employment or service relationships also enjoy patent protection, the Employee Invention Act (ArbEG) also applies in addition to copyright.

Your contact person: Lawyer Marion Janke (MLE) Specialist lawyer for copyright and media law.

 

Image: Trueffelpix - Fotolia.com

 

Details
Written by Marion Janke
Category: IT & Software Law

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