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Should Inventions Be Automatically Owned By Your Employer?
An anonymous reader writes "Joshua Simmons authored an article for the N.Y.U. Journal of Intellectual Property and Entertainment Law. The article is a comparison of the developments in copyright law and patent law in the nineteenth century that resulted in copyright law developing a work made for hire doctrine while patent law only developed a patch work of judge-made employment doctrines. The article theorizes that patent law did not develop an inventions made for hire doctrine, because inventive activity was almost exclusively perceived to be performed by individuals. It goes on to suggest that, as patentable inventions today are generally perceived to be invented collaboratively, the Patent Act should be amended to borrow from the Copyright Act and adopt a principle similar to the work made for hire doctrine."
By default/law, make it 50/50, and then let employers and potential employees negotiate.
If you've invented this on your own time, money, and resources there is no way in the shady side of hell that your employer should have any ownership of it. If you did this while being compensated by your employer, the situation is different. If you've used your employer's money and resources, then it is fair.
Employers have enough power to force employees to sign contracts as a condition of employment not unlike what you'd find in an EULA. No signature, no job.
So it doesn't really matter in the long run what laws we pass unless we make it illegal for employers to ask for certain concessions.
will be our undoing. The reality is that we're sharing everything.
Never say never. Ah!! I did it again!
If someone pays you to make something, it's theirs. If you do it on your own it's yours. If you develop a tool to make the thing you were hired to make, the tool belongs to the workman...especially if it saves the contracting party money. Otherwise, on a time and materials contract you have no incentive to be creative.
Otherwise, how would Edison have invented so many things?
More should be borrowed from the patent doctrine.
Now, if you create a work specifically commissioned by your employer, the employer should own the right to use your creation, but not to make a product out of it, and resell it, unless you were hired and have in writing communication that the work was specifically for that purpose
E.g. if you are hired to write custom software for an organization, by default that work should belong to you. If on the other hand, you were hired to build a custom software product, then by default, the work on that specific product, that you submit for that product, should belong to your hirer, as part of the understanding that you are doing product development work for them (versus just work for the benefit of their infrastructure).
Development of a product (giving ownership of your creative work for purposes of resale) should come with expectations of greater compensation, because you are handing over not just your hours of work -- but an opportunity to profit as well, from the resale of the work.
Whereas, development of software to meet an internal process, should come with an expectation that it is taylored to the needs of your employer's specific business, and you both retain rights to that.
I've wonder if the IP clause you find in employment contracts is even legal. How can an employer deem that they automatically own intellectual property I developed privately in my own time with a tenuous link to my current role? It makes *some* sense for employees where their role is to produce intellectual property, researches , authors etc, but it's hard to see how the blanket clause I've seen in every role I've had could stand up to a serious legal test.
Your employer absolutely should be entitled to any IP you produce ... *if* they're paying you for 168/hours a week. If it's only 40 hours/week then there has to be room for you to do your thing on the time that belongs to you. I hate it (and refuse to sign -- cost me a great job once) when they try to just stick a catchall into your employee contract. Contracts are supposed to be quid pro quo deals, not quid pro nothing.
IMHO, the major problems in IP law come from corporate ownership. It shouldn't be possible for corporations to own copyrights or patents, they should only be able to be granted strictly limited rights by the individuals who do own the IP.
Need a Python, C++, Unix, Linux develop
Think about it, the average worker doesn't need residual income for over a decade just for having an idea. They should be unemployed and found dead in the street after their most productive years have been tapped. All meaningful tail-end profit will be lost in estate litigation.
Now, corporations on the other hand, they last in perpetuity and therefore have the resources and time to maximize the revenue generating possibilities of a patent. As we all know, maximizing revenues raises all boats (especially, boats that look like this) and that's a good thing for America.
The Shusters, Siegals and Ditkos of the world...
You have the right to modify an employment contract before you sign it. I've specifically modified the company's right to ownership clause for my last three jobs and haven't had any issues. My last job also required a background check and the contract implicitly allowed them access to my personal info for the rest of my life; changed that to 30 days.
Inventions are almost always the result of collaboration. When hundreds of thousands of peers around the planet.
I cannot run my company, if I have to bargain for the invention that I paid my employee to develop. Now that being said, if I the employee developed the invention completely separate from the company then he certainly should own it.
We can't reform the patent system because the government itself is broken. The media sucks and even the dialog is warped where I.P. propaganda plagues the discussion. (There is no I.P. it is a PR term to manipulate the debate.)
Multiple inventors should split ownership. Only people should be allowed to own it (so we have to fix that corporation==people insanity.) The employer if involved in any material way should get a share of the ownership (the company owner, not the corp.) Ownership should be non-transferable. If I sign rights over, it is still technically mine and if I die the expiration and inheritance stuff kicks in. I could break contract and possibly just like a mega-corp, make more money breaking contract than following it. Nobody who actually INVENTS something new (seems to be rare today) should never be laid off after making their employer millions/billions. It really doesn't matter if they are paid or provided resources, their brain power produced it, not the money.
If we can't own anything we produce in our own time then there's no purpose to having creative hobbies, tinkering, or doing anything else for that matter.
The net result can only be that the American economy will have no further role and will just stall out completely and become irrelevant.
I think what's new about today is the technical feasibility of crowdsourcing some of the responsibilities of the patent office (in particular, those of accepting or rejecting a patent based on grounds that require engineering/scientific judgement) on a large scale. Also, there could be terms of exclusivity of varying length, e.g. 5 or 10 years instead of 20 years, which could be one of the decisions made by the reviewers on a case-by-case basis.
The reviewers would have to be
1) Identified by real name and address
2) Satisfy some minimum qualifications for the field they're reviewing, e.g. a bachelor's degree in a relevant field at a 4-year accredited university
The opinions would have to follow a form set up by the patent office which would guide reviewers to pass judgement on specific issues, from which the overall verdict (approve/disapprove) could be inferred. Reviewers would need to provide a certain amount of text backing up their opinions. Ideally, the submitting companies and engineers would not be made known to the reviewers, although this is not always feasible.
because people are making babies too fast.
In order to encourage people to get into STEM I think having some slice go to the actual inventors would be a good idea but a hard one to put into practice. For example how do you identify the guy who sticks his hand up in a meeting to cancel an 80 million dollar failure and says, "Hey did you bozos try adding salt?" which was the key to making the whole project work. Or how do you cut out the manager who divebombs the project 3 minutes before they file the patent and makes sure that the PR department only ever mentions him by name.
I can't count the number of professors that make some amazing discovery only to hear that it 100% depended on some off the scale brilliant graduate student.
If you want an interesting example of problems with credit it would be Hamilton Naki (look him up) when he first died many newspapers announced that he was a gardener with extraordinary surgical skills who helped with the first heart transplant but being black could not be credited. It later turns out that this story was false but that he was a quite medically skilled.
This all boils down to the fact that most people think that a few bigwigs make too much money while the bulk of employees are under paid. The simple solution is to raise taxes not only based upon your income but based upon the income ratio of your employees. So corporate taxes or income taxes on the highest paid should be based upon the average wage. So if your company has a bunch of minimum wage employees you pay high taxes. But if you raise their wages you lower your tax bill. These taxes should approach 100% for companies like Walmart with nearly 100% near minimum wage employees.
I am not against capitalism but I am against exploitation.
One of the reason why California has so many startups is that California State law clearly states that work done by an employee for the employee's own time and business interests belongs to the employee. It is very clear that the author of this article has no experience with startups.
If the default "inventions belong to the employer" rule was in effect everywhere, then the net effect would be to lock up employee ideas with little actual benefit to the employer. This is because most big companies are not very innovative, and thus fail to exploit most employee inventions. Most of the modern world as we know it would never have happened.
Dangerous and bad idea. I hope that the article remains forever ignored after this.
... basically property as an idea has expanded into every domain it doesn't belong in because of commercial interest and public ignorance/stupidity and a complicit media that does everything their corporate masters say.
http://homepages.law.asu.edu/~dkarjala/opposingcopyrightextension/commentary/MacaulaySpeeches.html
My last agreement was a "take it or leave it". I needed the job so I bent over and took it up the ass.
In the past the individuals inventing stuff were rich people. In the 1800's knowing how to read was a huge accomplishment
Having knowledge to invent something new was only possessed by a tiny minority of people
No, of course employers shouldn't own what employees think and invent. Employees are paid for what they produce for the employer. If either party isn't happy with it, either party is free to terminate the arrangement, but neither party is free to say "I'm not happy with your current output or the current paycheck amount, therefore I claim to own more of your assets." The notion that employers could do that is like a return to Britain as it was in the 1360's. Might as well make employees rent cubicles for a year in advance and base their pay on a percentage of corporate profits with terms rewritable by the employer at any point.
I am sure that Nikola Tesla, Philo Farnsworth, Stanley Meyer would have other ideas. If employers are so smart, then they would not need employees. There are way too many thieves, liars, and greedy people who do very little to earn complete and total control of someone's invention. The mere fact that money is offered, with strings attached, to fund an invention is not enough for complete ownership. If an invention succeeds, the inventor should have no less than 55% of controlling interest. If it should fail, an inventor should not have more than 55% of the financial burden when there are investors staking their money. In any gamble there are risks on both sides.
How many inventions are/ were shelved because it would upset the financial status quo of the greedy. Pure genius is not bought, traded nor stolen. It is a god given gift. Most inventors would like to live modestly while giving to humanity. Those entrepreneurs who live in the obscenity of avarice eventually get what they deserve.
It's been over 100 years and still the truth of Tesla's inventions is protected by "national security", why? The powers that were are holding tight to these truths and yet, they are still coming into the light of day.
This government had the big three auto manufacturers over a barrel. They could have been told to put on the road, an automobile seating four adults in safety and comfort, with sufficient power, and getting over 80 miles per gallon, at a reasonable price or get out of the business. What did these CONgressMen do? They threw taxpayer money at the big three for bonuses while the taxpayers lost their jobs, pensions, homes and futures. And then these asshats wonder why the American people are pissed at them, hmmm.
The mind conceives, the body achieves, the spirit manifests.
If you are employed to come up with patentable inventions then yes, of course. And even if you spend time developing it in your free time, Intellectual property is far to intangible to really differentiate, so I can see why it makes sense to own all inventions.
If it is not in your job description (aka a main duty that you are being paid for), I do not care if it was completely worked on in your office using office supplies. They do not own you or your intellect.
Troll is not a replacement for I disagree.
Development of a product (giving ownership of your creative work for purposes of resale) should come with expectations of greater compensation, because you are handing over not just your hours of work -- but an opportunity to profit as well, from the resale of the work.
You're killing american jobs, you know that, right? If we don't approve this, they'll be forced to take the jobs overseas, where such protections will be easier to obtain. Every attempt to restrict the profits of employers means less jobs for us, and jobs are what matter here, not letting some esoteric hippy non-sense about who owns what get in the way. And we all know that rich americans are the best kind of americans. Don't you want more rich americans? Employers already pay too much in taxes and health care and even have to pay for medical care if you do something stupid and get hurt at work. With such onerous restrictions on free trade, it's a surprise jobs haven't left our economy more quickly. For us to compete in the global marketplace, we need these kinds of legal restrictions lifted, so we can focus on the important business of generating profit and jobs, and not having to worry that some guy that wrote some code years ago when he worked as an intern might have rights to the code the business runs on.
*vomits a little in her mouth* I can't believe I actually wrote all that... but it had to be done, because that'll be the arguments raised against this. Now for a nice piping hot cup of reality: Those jobs will be shipped overseas regardless of what laws are (or aren't) passed. Rich people have no loyalty to their country, or their workforce, and neither should you. Fuck them over for every penny they're worth. Leave with zero days notice if you get a better job. Let them drink the free market koolaid too. And when it comes to copyright law... patent law... all of that, business exists in parts of the world where this doesn't, and in fact a lot of those jobs going overseas are going there precisely because they don't have the very laws they're lobbying for here.
Those laws are there to extract money from you, and make it all but impossible to be anything but a wage slave, with almost all of the money you earn going right back into their pockets... and it'll keep being this way until they figure out a way to do without you entirely through outsourcing and whatnot. Don't listen to the siren song of "profit and jobs", it's just a lie they tell you to keep you in line. The truth is; We don't need any corporations. We don't need money either. It's possible, though not likely right now, to live without them and to have a brilliant society. But it'll take courage, and a willingness to endure tensions and hardship, to move past our restrictive legal, economic, and military superstructure and towards a world where everyone's contributions are recognized and rewarded, and where we all share in the fruits of our labor, instead of giving most of it to middlemen that create nothing.
That world starts by saying: I own what I create with my own hands, what I think with my own mind, and nobody can ever take it away. Anyone who does, is immoral, and it's my duty to resist.
#fuckbeta #iamslashdot #dicemustdie
An omnipresent, paternalistic government is welcomed by most of society. Why should this be any different?
I want to delete my account but Slashdot doesn't allow it.
don't use degrees as a fixed minimum. Job experience needs to count as well and at max (minimum) a 2 year one.
There is debate on what is a accredited university.
In some fields degree are to board or don't even cover the area all.
What about fields where degrees are meaning less or are a very poor fit.
There is a on going push to more of a badges system.
What about stuff like trades so some who has been an plumbers and electricians for years can't be on the board?
as long as they pay back pay with over time and maybe even a overtime pay penalty for unpaided time as well.
For example:
if you are hired to write custom software for an organization, by default that work should belong to you
It does, unless your contract specifically transfers the copyright.
It's NOT a "work-for-hire". See CCNV v. Reid. (YOU Google that one!)
A "work-for-hire" has to exactly fit the very narrow legal definition AND the contract has to state "work-for-hire" in it.
Basically, works-for-hire are not creative - translations, compilations, etc.
Or what you do in the normal course of what you're getting paid to do.
This is a good summary:
The circumstances in which a work is considered a "work made for hire" is determined by the United States Copyright Act of 1976 as either
(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. (17 U.S.C. 101)
The first situation applies only when the work's creator is an employee, not an independent contractor.[1] The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency,[1] in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employees from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid,[2] the Court listed some of these factors:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."
On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:
the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
the work must be specially ordered or commissioned;
there must be a written agreement between the parties specifying that the work is a work made for hire.[1]
In other words, mutual agreement that a work is a work for hire is not enough. As a general practice, such commissions specify an exclusivity period, confer publishing rights to the commissioning organization, or exempt the commissioning organization from performance and print royalties. For vocal works such as operas,
If it automatically belongs to the employer, they'll hire some low-end attorneys (law school interns?) and patent anything and everything that comes to mind. Right now some developer has to think something is a good idea to get a patent. If every PHB on earth can patent what the employees do, you're in for a flood of seriously horrible stuff hitting the patent office.
Unlike a copyright where copyright springs into existence at the moment the work is fixed in a tangible medium of expression, getting a patent is a long, drawn out, and formal process.
If you do something on the job and get a patent for your employer as part of the job, you'll know exactly who owns the patent before the patent application is even filed (your employer will be the owner 99.9% of the time barring weird exceptions). Your employment contract will spell this out in detail, and on top of that you'll also be signing an assingment agreement around the time the patent is filed, which is an agreement to assign all rights to future patents that arise from the application to your employer. This is all very formal, spelled out in black & white, and leaves little room for error assuming a minimal level of competency. In other words: In the real world, this isn't a problem and as usual there is an academic proposing solutions for a problem that doesn't actually exist because it's more fun than trying to tackle real problems, which are harder to deal with.
AntiFA: An abbreviation for Anti First Amendment.
You're killing american jobs, you know that, right?
You have advocated ideas in the past that kill jobs. So that is a valid point to make when appropriate and probably why you have heard it in the past.
*vomits a little in her mouth*
That is a stupid meme. Please stop doing it.
That world starts by saying: I own what I create with my own hands, what I think with my own mind, and nobody can ever take it away.
But you can trade it away. Which is your primary value in a modern economy. All these actions are voluntary. If you don't like such a contract, then don't agree to it.
Now for a nice piping hot cup of reality: Those jobs will be shipped overseas regardless of what laws are (or aren't) passed. Rich people have no loyalty to their country, or their workforce, and neither should you. Fuck them over for every penny they're worth. Leave with zero days notice if you get a better job. Let them drink the free market koolaid too. And when it comes to copyright law... patent law... all of that, business exists in parts of the world where this doesn't, and in fact a lot of those jobs going overseas are going there precisely because they don't have the very laws they're lobbying for here.
Go for it. However, you'll reap what you sow.
You can take the "lessons learned" with you, but you can not take the tools (or the IP) with you.
You have advocated ideas in the past that kill jobs.
Translation: "I agree with you this time, and I hate myself for it."
That is a stupid meme. Please stop doing it.
Translation: I'm cool enough to know what internet memes are, but too hipster to use them myself.
All these actions are voluntary. If you don't like such a contract, then don't agree to it.
Translation: I have never just clicked 'Accept' when an EULA pops up because I live in a fairy-tale world where my idiosyncratic notions of fairness are never questioned.
Go for it. However, you'll reap what you sow.
Translation: I'm too old and jaded to be optimistic about anything anymore, and you should be too.
#fuckbeta #iamslashdot #dicemustdie
If they provide the resources for the development yes, otherwise no. The point is I remember the contract I signed while I worked at Disney. Everyone from the janitors up signed it and basically anything you created while you worked for them they owned. Translated if you were sweeping floors and happened to cure cancer they owned it. More realistically if you were hired as an office worker and happened to write a successful novel they owned the rights. The amazing thing is I talked to a lot of people there and they had no idea they signed that agreement. Most found out when they got that call from Disney legal pointing out what they had signed. Now say you are working in their robotics lab and come up with a new software or hardware design using their facilities then it's reasonable since they made the investment in the facilities and paid you for your time. It's blanket agreements that should be banned.
We need less one-size-fits-all government intervention / regulation and more flexibility in all things, from agreements in marriage to neighborhood associations to employment. Market forces and individual bargaining should frame the terms, and once all parties agree you have a binding contract that spells out all policies pertaining to the employment, from workplace safety to "sexual harassment" policies to ownership of ideas.
--libman
When you are hired to work for Radio Shack they make you sign an agreement that ANY inventions that you come up with while employed by them are their property. They also state that any future inventions that MAY have been thought up during your time working for Radio Shack also belong to them. This includes your own time. This is any invention during the employment period and any time in the future.
In a word: No. More completely, if the invention was made on company time using company resources then the company should own part of it, if not then they shouldn't own any of it.
In the past the individuals inventing stuff were rich people http://phanmemtiger.com/
It is our own fault if we allow ourselves to be taken advantage of by a bunch of 'super-car driving' suits. Don't work for companies that don't compensate well for inventions... their are plenty of organizations out there that do compensate well for patents (i.e. 30% of patent royalties, large bonuses) As a scientist/engineer in an 'inventor' type position, intellectual property considerations are a very important aspect for me in any employment agreement... I imagine the same is true for most inventors whether they are inventing algorithms, molecules, ion thrusters, or whatever. In my opinion, if you are a proficient inventor, you belong in a organization that (1) will patent the 'good' technology you invent, (2) will actively market your inventions when and where applicable, (3) will litigate in cases of infringement (other your patents are not worth a darn), (4) mostly importantly, will share patent royalties with you. The only question is how #4 is handled: stock-options [in case of a start-up] and/or a solid percentage in the case of royalty sharing. Personally, speaking of us techie's as a collective, if we're not get a significant percentage of our patent contribution (like 20%+), then our salary requirements should go up dramatically. Sadly, many of us folks in tech inventor types jobs have gotten into the habit of accepting for too little compensation for our capability.
Who Owns Evan Brown's Brain?
The legal filings of the lawsuit DSC Communications v. Evan Brown are provided on this web site.
It takes a lot of searching the records to find the abuses of the court.
One of the first abuses is recorded in the transcript of the hearing on April 30, 1997 (Motion for Protective Order pg26:16). Judge Roach's statement also clearly shows he was communicating with DSC's attorneys in violation of the Texas Rules of Civil Procedures. Judge Roach personally owned shares of stock in DSC yet he ruled on evidence and testimony while in direct violation of the Texas Constitution. Note: The Texas Court of Appeals ruled Judge Roach to be disqualified and all his orders were ruled void.
The case was assigned to Judge Henderson after the Court of Appeals issued their ruling on Judge Roach.
Judge Henderson violated the Texas Rules of Civil Procedures when issued an Agreed Scheduling Order despite my objections. The scheduling order put me to a disadvantage due to my lack of knowledge and experience with the legal system. Judge Henderson denied my April 8,2002 3rd Request for Discovery to Plaintiff and 2nd Request for Interrogatories to Plaintiff due to my misunderstanding of the scheduling order.
Judge Henderson denied my 2nd Motion for Summary Judgement in violation of the Texas Rules of Civil Procedures because DSC/Alcatel failed to file a Response to Motion for Summary Judgement. Judge Henderson granted DSC's Motion for Summary Judgement despite the presence of material fact issues. Judge Henderson issued a Final Judgement disposing of the lawsuit after granting DSC's Motion for Summary Judgement for Breach of Contract despite the fact that DSC had several other claims in their Amended Original Petition.
The Jury Fee was paid to the court for a jury trial yet there was no jury. Judge Henderson abused the Texas Rules of Civil Procedures again by personally evaluating the facts and testimony of the parties and personally ruling on the fact issues presented. As a result, an undeveloped thought in a persons mind is now qualified by the Texas courts to be an invention. As a result, if you receive compensation (pay check) all your thoughts (24 hours a day, 7 days a week) belong to your employer.
DSC Communications was a manufacturer of telecommunications equipment and there is no reference to any product sales of software reverse engineering services or product in any of their SEC filings or other company literature, yet Judge Henderson ruled that my idea was along the line of work or business.
The Texas Court of Appeals denied my appeal which was based in part on Judge Hendersons violations of the Texas Rules of Civil Procedures. The Texas State Supreme Court denied my petition for review as allowed by the Texas Legislature. Texas State Supreme Court is allowed to pick and choose what cases they wish to hear. The Texas State Supreme Court is the body that created the Texas Rules of Civil Procedures and is the body that enforces those rules.
The long and short of the seven years I spent in litigating this case is that there is no justice in Texas courts. Judge Henderson violates the rules, the Court of Appeals chooses not to rule on the lower court rules violations, and the Texas State Supreme Court chooses to turn a blind eye to the lower courts abuses.
One story I've heard over the years is that in Texas, businesses contribute substantially to the reelection campaigns of judges even though many judges run for election un-opposed.
The TV program "60 Minutes" has documented many of the problems with Texas courts and judges in the past and nothing has changed to correct the abuses.
It is my belief that justice is forsale in Texas.
Work in Texas at your own risk
If you are a creative thinker and problem solver, you are much better off working in California where you have some protection from your employer.
http://www.aisnota.com/slashdot/ Welcome to Logic and the Future
More should be borrowed from the patent doctrine.
Now, if you create a work specifically commissioned by your employer, the employer should own the right to use your creation, but not to make a product out of it, and resell it, unless you were hired and have in writing communication that the work was specifically for that purpose
If an employer commissions you to make a work of art, they OWN that art. They can do whatever they want with it. IF you want to retain rights over the work, you need to negotiate that up front. Not the other way around.
What you are saying is kind of like "Yeah I'll build this chair for you, but you can't resell"
If an employer commissions you to make a work of art, they OWN that art. They can do whatever they want with it.
The point is, they should own that painting or sculpture, the PHYSICAL creation I made for them by default, with the right to resell the physical piece or do with it as they please, but the right to copy my creative expression that physical thing embodies and make more of them remains with me, unless I negotiated with the commissioner to productize and resell it. Otherwise, when they want to productize/resell it, they should have to come back to me, and negotiate terms for that, that we mutually understand, and agree to -- E.g. we BOTH get fair compensation for the further profiteering against my creative work.
What you are saying is kind of like "Yeah I'll build this chair for you, but you can't resell"
No... what i'm saying is like "Yeah, i'll build this chair for you." But I retain the rights to build more chairs of this specific design (unless you designed it to), and you don't automatically get the rights to my design for the chair, unless we explicitly negotiated that you would have the right to prototype this chair and and build/sell more identical chairs, without further involvement or from or payment to me, AND I was compensated for the exchange of that right separately and in itself from the work in constructing 1 specific copy of my design.
Translation: I'm too old and jaded to be optimistic about anything anymore, and you should be too.
Talk about the pot calling the kettle black.
You're killing american jobs, you know that, right? If we don't approve this, they'll be forced to take the jobs overseas, where such protections will be easier to obtain.
I would recommend the US law being revised, so in the case of a work made overseas; the natural person who created the work will always own the copyright, and not any employer, unless the creator of the work specifically registered it in the US, and and signs a paper IN PERSON at the copyright office, notarized, and also witnessed by their legal counsel and two US copyright officials officials, designating an official transfer of rights, AND no contract or document signed by the officer of a corporation or its counsel, and no mailed or faxed document, is allowed to be used in place of that.
Whether a company has any co-rights to an invention is typically dictated by both the job description, as well as their contributions.
For instance, if a software developer is building a website for a client, using tools he paid for himself, then he owns whatever patentable ideas he comes up with. In another instance, if a physicist is hired by a multinational conglomerate to specifically dream up and design an ultra-violet laser, using resources he cannot acquire on his own ($30 million lab), then the company owns the patentable items, but the scientist is allowed a percentage of the revenue / profits / whatever from the invention. If a mechanical engineer, doing his job as he has done for many years, thinks of a new way of doing things, and leaves the company to start a new one, the patent rights on this new way of doing things are his.
A lot of companies are taking an idiot's approach to acquiring intellectual property, by slipping in a clause stating that anything dreamt up while employed by them becomes theirs. Since there is no special consideration for this extra service, these contracts become invalid; additionally so if the company attempts to dictate terms whereby they get the lion's share of any of the profits. Even the Japanese courts, who may be seen as pro-employer by most of the world, has ruled against employers when adequate compensation was not found; I believe the scientist who created the blue laser (or was it the blue LED) ended up being rewarded by the courts after it was found that his compensation was laughable.
Now, it is kind of fuzzy here, as companies are trying to create a boilerplate clause to protect themselves against being sued for patent violations by a former employee if the former employee patents an invention invented using company resources and used in company products. However, a number of business types (not legal types) had a brain fart, and thought that they could hire someone for a low-end job, push them into scenarios where they would be forced to create high-end / patentable solutions, then skim the solutions for themselves. In other words, they pay a chemist to do drudge work, the chemist has to come up with a new process to get the work done on time / various demands, the company swoops in and takes the patent rights to the process; the chemist is paid $50K for his salary, then summarily terminated, while the company walks off with patent rights worth $100M. This is something that the courts frown upon, as from their perspective, it's more important that an inventor be compensated than a company be profitable; they despise the idea of theft, or screwing someone over who actually provides something worthwhile to society.
I am John Hurt.
Copyright exists on creation. Very long-standing law.
Brackets contain world's first nanosig, highly magnified:[.]
I'll be at home, practicing a hobby completely unrelated to work and have an idea of some piece of software to write related to the hobby. Then I'll remember the "We are Employer. We own everything." paper I had to sign. The idea is forgotten shortly thereafter. If I can't say how the software should be licensed, why should I spend any time on it?
No.
sorry let me extend this idea,
where do we draw the line?
I took a photo and decided to sell it - although my photo was off of work time, my employer owns the rights to the photo and is now suing me
I wrote a book, it is being published - My employer's parent company owns a publishing company, I did not sign through them...They argue that they own the rights to the book as I worked for them while I was writing it, they are now suing me for any payment I get through that book
I have made an Iphone/android game in my spare time to increase my income - I work for a video game company that has never and never will make a mobile game..I think you know where this is going...
sadly for the company I work for these are polices that were just handed down from the top
tl;dr
where do we draw the line of work life and home life, personal and private work, should we really be favoring companies?
so in imho
No.
There wouldn't be a blue LED or blue laser then. Not for a long time perhaps.
Shunji Nakamura put in a lot of extra effort, when told to give up, and invented the blue led, then after a lot more effort won a landmark suit that gives Japanese inventors rights to compensation for their inventions. Even though it has been seen as unseemly to "grub for money" in Japan.
If everyone shares, who invents? Nobody has to because it is all shared, right? Inventors should get rights to their inventions, and their employers can participate in that to the extent they are spending company time. It would truly be ironic if the country known for inventiveness succeeded during its final slide into obscurity to shoot itself in the head. It will be remembered in infamy as "Pulling a U.S." Doh!
This government had the big three auto manufacturers over a barrel. They could have been told to put on the road, an automobile seating four adults in safety and comfort, with sufficient power, and getting over 80 miles per gallon, at a reasonable price or get out of the business. What did these CONgressMen do? They threw taxpayer money at the big three for bonuses while the taxpayers lost their jobs, pensions, homes and futures. And then these asshats wonder why the American people are pissed at them, hmmm.
Yeah, an affordable 80 mpg, with good crash protection, less than 10 seconds 0 to 60, non-ugly, EPA emissions meeting, full sized sedan. hahahaha. The big 3 must know something Toyota doesn't. I mean, the Toyota Prius gets a mere 48 mpg highway, and that's after 15 years and a few billion on R&D. I mean, the big 3 knew all about hybrid synergy drive, how to get 150,000 miles out of the Nimh battery, and the many Prius tweeks. The 2013 Camry get 35 mpg highway. The hybrid gets 40?. The Prius V gets 42.
Obama won Ohio for throwing taxpayer money at the big 3. The American people would be mad if Congress made them drive around in expensive, ugly 80 mpg Geo Metros.
I hold a Ph.D. in Applied Physics, and this is a big reason why I abandoned a scientific career track. I've seen myself and other colleagues come up with great ideas, patents obtained, launching a new industry in one case, to reap zero long term reward for innovation. If companies were willing to let the inventors get their beaks wet, things might be different for me. Working a well paying research job, 51% ownership (or whatever number has been tossed around in this discussion) of related invention belonging to the individual is ridiculous. More like 5%. If your idea is worth a billion dollars to the company, you still get rich, the company still gets its reward for creating the environment that fosters innovation.
The U.S. Constitution grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It does not grant Congress the power to secure exclusive rights to the employers of authors and inventors. (Nor to their heirs or assignees, but one misbegotten legal fiction at a time.) The "work for hire" doctrine is, constitutionally, DOA; it doesn't pass even casual reading.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Giving corporations and employers the power of ownership over your entire life has frightening implications. So if you have a eureka moment, quit your job and develop the next best thing, they can still go "oh, you thought of that when you worked for us. ours. This is basically saying "we own your thoughts" as well.
No.
Better reason: Because producing 'works for hire' in the copyright realm assumes that the job could be done by any one of a number of persons skilled in the art. You pay an author or artist to produce some work given some contract terms and they perform. Applying that standard to technical work would disqualify the product from being patentable. The solution would not be obvious to one skilled in the art, so no employer could expect to hire anyone to solve the problem.
Have gnu, will travel.
If I develop some code at home which may be useful to the business I ought to get credit for it when it gets used by them commercially as it is 100% my creation, however employment law and employers don't recognize this at all.
I'm drawn to the conclusion that the only way to get on is to talk loudly and confidently all the time whilst producing nothing at all. It seems to work well for a couple of my colleagues. Such is the world that we have created.
Because who in his right mind would endorse such a scheme as "patents"?
The granting [of] patents ‘inflames cupidity', excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits...The principle of the law from which such consequences flow cannot be just. -- The Economist, 1851
"The more prohibitions there are, The poorer the people will be" -- Lao Tse
This way it makes sense to work for someone who pays you and you can still get something out of it. At the very least, 10% of your invention because god knows you wouldn't have done anything with your ideas if it weren't for your employer haha
That would be a breach of the Berne agreement by the US (specifically, that copyright cannot be dependent on registration, and that would include transfer of copyright).
Why should a non-US citizen, employed by a non-US company have to file paperwork in the US?
Turn it around - that would mean that every single person who worked on Windows would have to file paperwork in every country in the world before Microsoft could release it in that country. That's mad.
The alternative is to abolish work-for-hire (which I would support) and that the most an employer could contract for would be a transferable non-exclusive licence for the duration of the copyright as it stood at the time of the fixation of the work. That would also kill off corporates' vested interest in copyright extension.
Personally, I would prohibit all transfers of copyright; the author or their estate would be the only holder; everyone else would be a licensee. This would also mean that their estate could not be completely wound up until 50/70 years after death.
Development of a product (giving ownership of your creative work for purposes of resale) should come with expectations of greater compensation, because you are handing over not just your hours of work -- but an opportunity to profit as well, from the resale of the work.
This really depends on the nature of your relationship with the employer.
What you are generally describing is contract-based work, where you're paid for the successful completion of some job. Your pay is likely at-risk in the sense that if the customer doesn't accept the software you build, then you don't get paid for it. In a situation like this, it makes sense that copyright is not treated as work-for-hire unless it was part of the contract (but anybody in such a relationship should make copyright ownership explicit in the contract either way).
Work-for-hire generally involved employee relationships. In such a relationship you are paid to work on whatever the employer asks you to work on, and you're paid by the hour or on salary, and you must be paid for the period of employment regardless of your productivity. The employer can of course fire you at any time if they don't like your work, but they can't tell you in June that they think your work from December on was poor so they want their paychecks back, or even refuse to give you your last paycheck. In such a relationship your pay is not at-risk, and your work is employer-directed, so the employer by default owns the copyright on what you do.
I don't see any real impact on people doing freelance work - anybody in this line of work should have well-written contracts making ownership of copyright explicit, and I doubt any court is going to modify the terms of the contract in such a situation.
The point of a patent is to gain a limited monopoly on an invention in the marketplace. People invent things, companies do not.
The fact remains that unless the employee is sharp witted on legal matters, the employer is going to unconscionably screw them.
Sadly, the employee must remain vigilant and not agree to such restrictive nonsense. (and not just in terms of purported ownership, but also in terms of arbitration). Friends don't let friends use the government to solve their problems.
We're in an era of reputation (look at LinkedIN, and Klout), and the patent system will inevitably revisit the concept of reputation inadvertently.
Depending on what political and philosophical angle you are coming from, the whole patent system looks like pure evil, or good in a "screw them before they screw us" sort of way.
Without artificial monopolies, companies would have to depend purely on their product quality, source authenticity, and reputation.
Employees should not also be monopolies.
Unless an employee is directed to find a specific discovery and is paid to do that at work the employer should receive no rights or money at all. Accidental discoveries while at work should be the property of the employee.
This is in the public interest as the courts are expensive to tax payers and allowing claims from employers clog the system is good for no one. Usually most people who have a revelation or discovery at work are not dumb enough to notify their employer anyway.
Imagine an employee that works at two jobs and he comes to a conclusion based upon getting near the subject while on both jobs but not as a direct goal of the job. Now imagine three parties in a legal war to decide who gets the monetary rewards.
Should Inventions Be Automatically Owned By Employees.
I don't see why the parent is modded troll. In my company, there is a patent committee where you submit your ideas, and the result is,
- either they take it (it is then patented by you and the company, with the law imposing "a just remuneration" of it, related to what money will be raised)
- or they judge it useless to the company, and you are then free to patent it on your own (and at your own expenses).
I for one did both, and many times (ehh yes, I'm not young). As concern the "just remuneration", most people prefer negotiating a fix and standard amount, whatever the later use is. Here it's a couple of thousands € when the patent is applied for, and a second, lower amount when it is accepted in the end.
Just seems to be normal work, seen from here in Europe...
Herve S.
In the class war that has been raging for the last couple of decades the wealthy have pocketed the lion's share of the gains in productivity, partly by passing corporate friendly laws. Now, some are arguing that they should have the right to any idea that I have at any time. Why not also give them the right to any vegetables I grow in my garden? After all, I can talk to other employees about gardening around the water cooler and dream up new gardening techniques at my desk. Oh wait, didn't we decide that you can't own a person in the 1860s?
There's a lot of discussion here about "on your own time".. Such a concept does NOT exist for exempt (salaried) employees. You're not paid by the hour, you're paid by the day, week, month, what-have-you. Your company may have attendance rules and/or time cards, but realistically speaking, one aspect of "exempt" is that you are in a position where the company owns your intellectual product.
Now, the company and you can agree that inventions not in the company's direct line of business, in the business unit where you are employed. if division B of MegaWidgetCorp makes veebles, and you work for division A, which makes fetzers, and nothing to do with veebles, then even though MWC makes veebles somewhere, your veeble inventions belong to you. Obviously, "reasonable people" might disagree in such circumstances, leading to the enrichment of the legal system to settle the issue.
There's also the whole thing of "shop right" (discussed at length in the lengthy article, which few of the commenters have read). If you made that invention using your employer's tools, knowledge, etc. then they have a (non-exclusive) right to use the invention, but not to sell it or sublicense it. For the purposes of this discussion, it's not so much the historical "employer's tools" that's a big deal (everyone can buy their own computer), but that you used your knowledge gained at the employer that's important. Where the line crosses from "general information" to "employer specific" is a tricky one. If you discover a new law of physics.. that's free to everyone. If you invent something that makes your employer's trade secret protected manufacturing process better, that's probably in the "shop right" bucket. Again, "reasonable people" will differ, and lawyers need to be involved.
Does anyone know what happened in the final outcome of this case. I tried searching on Google, but can't seem to find the right case.
Back in the early 1990's, I read in Newsweek about a case where a (Russian emigrant) summer student worked for Tampa Electric on how to remove calcium buildup from pipes. He never made a lot of progress during his summer work, and the project was halted afterwards. However, the student persisted at the problem and came up with some solutions, which he patented under his name only. Once Tampa Electric found out about his work, they grabbed the patent from him because they funded the initial research. He refused to turn over his lab notes and was being held in jail on contempt of court, when the story made it to the news. Does anyone have any references or additions to this case?
That would be like killing innovation.
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I am a little puzzled, so please correct me if you have more definitive knowledge. Isn't true, that if you are employed for your creative talents, any ideas, devices, etc., that are directly related to the business are automatically given over to the business by assigning rights, whereas anything not so related will be so assigned? Given this is correct, why is there any need for either new law or new interpretation of existing law? I remember back in the 1960"s and earlier there were cases of engineers wishing to build personal projects, e.g. a sailboat, but were prevented from doing so by their employer. Apparently these cases arose not because the engineer's work threatened the company IP, but instead just because the company would say "no" always, to blanket every situation.
One thing useful about a payment for time contract is that, while your employer owns all inventions, the employer also assumes all liability.
Imagine a scenario where you were to invent some kind of new brain scanning device for detecting cancer, and later it turns out that the device kills people. In the current patent/invention landscape, the company you worked for gets sued for millions and millions over the deaths of those affected. If you were to own and profit directly from your invention, you would probably be personally liable.
I would rather negotiate my salary and bonuses and not worry about the liability. If I have something truly novel that my company didn't ask me to work on, I will quit my job and work on it on my own if I am comfortable with that liability.
Intelectual Property shoud not exist in first place.
If the invention is a primary result of the work one was hired to do, then it is a work for hire and one doesn't deserve anything other than the compensation to which one agreed.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
This guy is saying we need to write MOAR LAWS because he thinks it's a pain the ass to have to force employees to sign agreements giving away their rights of ownership as a condition of employment.
FAIL.
Or, after reading the NDA, Write Your Own Fucking Contract.
I don't know how/ if law works outside Europe, but you are employed by contract, and you have an explicit right to a written, signed copy of that contract. And that is what governs your relation with your employers (what isn't covered by statutory requirements which you cannot sign away).
But always, RTFC before signing. Always.
Birds are not dinosaur descendants;birds are dinosaurs, for all useful meanings of "birds", "are" and "dinosaurs"
I worked for a company in the 1990's that forced ALL of its employees to sign away the rights to any intelectual property they created for the duration of their employment and for a period of 5 years afterward.
They WERE a tech company, but if you read the contract, they could have taken ownership of ANYTHING copyright-able or patent-able.