Question on source code copyright and developer rights (if they exist!)

Question

I am an indy dev/student and I recently had a mandate to build an client-server iPhone application for a students association (for a low amount of money).

The contract stipulates that a fully functional application has to be delivered, and must have the following features : (list of end user features). There's no mention of source code or intellectual property in the contract.

The project is now finished and the client seems happy about it. In fact so happy, he wishes to copy protect it under the name of the association, give the source to other mandated developers so they can add features to it, and sell customized versions of it to other clients.

I do not see it that way, and plan to carry on other projects with the source code as a basis. I need legal advice, or your own experience as a developer, about those kind of issues.

• Does the client legally have the right to realize his projects?
• Who is the legal owner of the source code in this case? (Switzerland's the country if it matters)
• What is your experience as developer? What would you do to solve such a dispute?
• Any information/advice resources you would recommend?

Any help would be greatly appreciated.

Answer 1

From Chapter 2, § 201. Ownership of copyright in U.S. Copyright law:

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

So if this is "work made for hire", then you do not own the copyright.

However, the definitions in the same law show that some very specific conditions need to be met before contractor work is considered to be "work made for hire":

A “work made for hire” is —

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

From your question it is clear that you are a contractor, not an employee. So unless your contract explicitly specifies that the work is "work for hire", you still own the copyright.

edit:: just to be sure I would read through this brochure which talks more about how to determine whether a work is "work made for hire".

edit2: I missed the rather important fact that you were asking about Switzerland. Swiss copyright law is not the same! Take a look here. It is a bit ambiguous. You should check whether the mentioned exception for computer programs applies only to employees or also contractors.

Answer 2

As others have mentioned, consult a lawyer if the client puts up a fight.

In my opinion, if the contract does not mention that source code should be included, then I wouldn't hand it over. Contracts are made for a reason, and if something isn't specified when both parties have agreed (signed), it can't be considered a clause for fulfilling said contract.

Good luck! I hope you retain ownership of your work.

Answer 3

If the contract only mentions the finished product, then that is all it applies to. However, without having a copy of the written terms of agreement, it's impossible to know for certain what you can or cannot do.

If you can guarantee (which you can only really do on advice of a lawyer) that you do not have to give over the source code, then it's all up to you. But a question: You want to use the code for your own projects; does this mean that you do not want them using your code?

If you have no objections to using your code as a base, and simply want to use what you developed for your own purposes, then the easiest thing to do is talk to them, explain you're willing to let them have a copy of the source, but that you're allowed to use your copy for what you will. Sign a contract to this effect to ensure there's no legal issue down the road.

Giving them a copy of it for their development doesn't take anything away from you, so long as no contracts say it does.