Aurora Citizen

News & Views from the Citizens of Aurora Ontario

Guest Post: Who Owns the Intellectual Property of Work Paid For?

Posted by auroracitizen on January 11, 2011

Here’s a philosophical question open for comment and discussion. It is something that has been “bugging” me since the Town stopped payment on December 22nd.

First a fictitious analogy to help with my thinking:

A business — corporation B — engages architectural firm A to start the design of a new custom-home for their current president. The president of course is very happy with this scenario as she/he will be getting the benefit of living in a new specially built home at the expense of corporation B.

However, midway through the design process corporation B lets the president go and then tells architectural firm A to stop designing for them as they are no longer in need of the house. The design is not complete and corporation B will pay architectural firm A for all services rendered to date and no more.

The now ex-president liked architectural firm A’s design, approaches architectural firm A and asks them to complete the custom design for which the ex-president will now pay them directly.

The ethical query: Should architectural firm A do this work for the ex-president as corporation B was the original client and paid architectural firm A for the initial work and is the rightful owner of the intellectual property of the design for the custom-home?

The ex-president would be benefiting from corporation B’s initial expenditures and reduce their own cost in the design. Should architectural firm A be starting from scratch on a new design for the ex-president as he/she is not entitled to be using corporation B’s intellectual property? Or should architectural firm A tell the ex-president that is it a conflict of interest to work for them and the ex-president should seek help from another architectural firm?

Now let’s turn this to our local situation without getting into the political dealings of who, why, how etc..

The Town of Aurora engages an external law office to sue townspeople for apparent defamation of the current mayor. If successful the mayor will benefit with direct financial compensation. The legal proceedings start, the mayor by way of an election becomes the ex-mayor and the new council decides to stop direct engagement of the town’s external lawyers for this particular lawsuit.

The legal proceedings have not been completed and the Town will only pay the lawyers for all services rendered to date and no more.

Can the ex-mayor then approach the lawyers and tell them that he/she will now pay their bills going forward and thus benefit from the work to date paid by the Town or does the Town as a corporation own that “intellectual property” and/or services provided by the original lawyers and the ex-mayor is not entitled to its use? If so, should the ex-mayor be “starting from scratch” perhaps with a new lawyer and new proceedings as it would be a conflict of interest for the original lawyer to continue?

What do you think? (Any lawyers in the crowd who can shine some light on the legalities of the situation?)

Paul

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27 Responses to “Guest Post: Who Owns the Intellectual Property of Work Paid For?”

  1. evelyn buck said

    What if the “property” is not the least bit intellectual?
    What if it feebly grasped at straws floating in the wind?
    What if it was so bad, it was an insult to a sensible person’s intelligence?
    What if it wasn’t worth the paper it was written on?
    What if it had no value?
    Who should pay for it then?
    WTF

    • Robert the Bruce said

      Who makes those determinations?

      Fuimus

    • October Came, Thanks were GIven said

      Evelyn,

      WTF?

      Wash out your mouth young lady!

    • evelyn buck said

      WTF WTF WTF WTFFFFF

      letters on a page. “Expletives deleted” in a different form. If English is not your language, no offense can be taken.

      If English is ,you know the phrase is not literally intended.

      The meaning of the word is explicit.

      Why is it so horrifying?

      How does a word describing human activity as old as humanity and necessary for the survival of the species, come to be so vile as to cause nice people to suck in their breath in horror to hear it.

      “Go forth and multiply” God said.

      He didn’t mean “Get a blackboard and a stick of chalk and get busy doing your sums ,fella.

    • Anonymous said

      oh snap!

  2. Christopher Watts said

    Paul,

    I don’t see the issue with the former’s mayor’s lawsuit to be an issue of intellectual property, although the comparison does make for an interesting sidebar.

    To say Intellectual Property law is an intriguing and complex field doesn’t begin to scratch the surface.

    It is a field fraught with it’s own failings and that is why we have seen the outcomes of intellectual property cases resulting in the copyrighting of seeds (http://www.huffingtonpost.com/kurt-friese/seeds-to-plant-or-seeds-t_b_804240.html ) colors : Yes

    apparently T-mobile owns magenta (http://sixrevisions.com/web_design/color-the-next-limited-resource/ ) and even balloon animals http://www.designboom.com/weblog/cat/10/view/12764/jeff-koons-can-one-copyright-a-balloon-animal.html

    Just recently we have seen major record labels have to settle a class action lawsuit over copyright infringement: http://www.michaelgeist.ca/content/view/5563/125/

    Major record labels got caught practising piracy and the claims arise from a “longstanding practice of the recording industry in Canada, described in the lawsuit as “exploit now, pay later if at all.”

    Interesting description indeed, but any comparison to any of this with the former mayor’s lawsuit for me would be less regarding intellectual property and more the absurdity of the underlying principles.

    From my perspective the action of a town to sue 3 of its residents is absurd, and is the result of a former elected official looking to use town resources for personal gain.

    That was confirmed when “in capacity of mayor” was removed from the lawsuit negating the involvement of the town making this a personal matter.

    The magnitude of the claim ($6 million), along with the fact that this was a clearly unethical choice to use a government to sue citizens with opposing views in hopes of silencing them goes against the democratic principles of our nation. Hence the involvement of the CCLA.

    The lawsuit was launched leading up to an election, and following the use of the office of “integrity commissioner” to uphold sections of a feebly constructed code of conduct that clearly contradict the charter of rights and freedoms.

    It continues to be my opinion that the town should seek to recover “any and all” resources required by the town for this purpose regardless of the outcome of the lawsuit as the lawsuit has nothing to do with the town. I have no reason to believe the town is not doing this.

    If the former mayor wishes to engage and use the services of the same lawyers the town used I don’t see a conflict unless contracts were drafted say otherwise.

    I can only assume, like with your example of building projects, this contingency has already been bridged.

    The intellectual property we have lost as a town under the past term of council has been huge, and that of course is the senior staff turnover, none of it is likely to be reclaimed.

    And while we’re on the topic of intellectual property that the town has lost lets not forget our museum and all the funding and resources that were exercised for its intended housing in the Church Street School resulted in a “Cultural Centre” .

    Now we have a recently restored property that operates a centre that no one asked for, that is not even remotely profitable while the town’s historic properties reside in boxes in the basement. I can’t comprehend a less intelligent use.

    • Anonymous said

      Excuse me, Mr. Watts but weren’t you also one who wrote comments under a pseudonym, which is also anonymous to those of us who don’t know you, until recently?

    • KA-NON said

      Correct me if I am wrong Chris, but didn’t that pseudonym always link directly to your own blog?

  3. Robert the Bruce said

    I am in the IT business and for over 25 years I worked for consulting firms. The first first consulting firm was an IBM Business Partner that provided hardware and software solutions to small/medium businesses (I am talking about mid-range computer systems here not PC/PC network stuff). We wrote custom designed systems as well as packages (Accounting, Payroll, Inventory Control, etc.).

    Back in the day (mid to late 80s) our office building at Sheppard/404 contained at least 4 similar companies in addition to IBM; and a number of other similar companies were in the same area. So, it was a highly-competitive industry from both a sales point of view and for the employees, you could write your own ticket if you had the right skills. There was always movement between these companies and to a lesser extent, IBM. The one over-riding thing however was the fear of an employee moving to another company with “intellectual property”. That could be something you could take, like a program printed on paper, a disk or tape of programs or a customer (prospective customer) list.

    More important was the “stuff” you could not see. A person who had worked at the firm for a while picked up ideas, concepts or methods that in some cases provided the backbone of the application programs. You could equate it to someone at Apple in the early ’80s hiring someone from Xerox and that person brings with them the concepts of windows, drop down lists, etc. – stuff we all use today on a PC.

    These consulting companies tried many times to prevent employees from moving between each other to safe-guard these things. I recall some of them being challenged in court and the root outcome was that a company cannot force an employee to not work for another company in the same business. A company cannot prevent you from making a living. This sort of environment did add strength to the copyrights of software. Companies could make employees sign non-disclosure agreements however and that became the norm.

    However, you can’t suck out the knowledge from a person’s brain.

    Fuimus

  4. There is absolutely nothing wrong with ex-President asking corporation A to finish the custom home design, as long the three parties come to the mutual agreement. The most logical solution to me is as follows. The ex-president should be charged full price for the custom home design, because he is the end buyer. I don’t really see any other connection of him to Corporation A or B, other than he almost got a free custom built home. Since IP belongs to Corporation B, ethically corporation A must buy the custom home design from B or ask to license it. That way Corporation B will get their ‘kind’ of money back, Corporation A will make some money, and no freebie for the ex-president (after all he probably got a good severance package on the way out to pay for the complete design, lol). That’s business to me.

    Now the mayor situation. Logical solution: if ex-mayor wins the battle she should pay back all the costs absorbed by the Town of Aurora. This is ethical to me. I hope that politicians are ethical these days?

    On the side note, I hope that in the next four years in the Town of Aurora we will see more risk analysis and more strategic thinking, not just putting hands up in the air and voting on everything and anything, the example ex-mayors lawsuit.

    Anna

  5. I have about as much time to answer this question as I do to build that house. That said, I find intellectual property issues to be inherently fascinating, and am intrigued by your comparison to the former mayor’s lawsuit. (BTW, I’m one of those long haired, freakish, beatnik types who prefers the less popular but more accurate term Intellectual Monopoly, but that’s another debate.)

    As I’ve said before. IANAL, but I’m happy to give you my lay interpretation.

    With regard to your analogy. Generally people who produce creative works for a living (including me) will agree at the beginning of a project, what the resulting ownership will look like. Corp B could be purchasing total copyright, an exclusive license, a limited license, or simply the benefit of work donated to the public domain. If they don’t make an explicit arrangement to the contrary, then the creator will retain ownership of the IP. There are exceptions of course, such as commissioned photographs, where the person who commissioned the work becomes first copyright holder. The text of contracts are also interesting exception as copyright is generally NOT applicable to those at all.

    I might be wrong, but I suspect that architects usually provide there services under a limited license, so that they retain IP ownership, and you are free to use the resulting work in anyway you wish for your own use. So, if you hired the architect to design you a one off house then you go off and start selling the plans on ebay, you are likely to get into trouble with the architect.

    I see no issue with the former corpB employee approaching firmA to finish the job. If firmA still owns the copyright, and corpB has ceased doing business with them, then I do not see any conflict.

    I see it similarly with regard to this specific lawsuit. I think what the law firm would have been selling is a service. Legal documents, once submitted to the court become part of the public record, and contracts, as I said above, have incredibly weak copyright protection. What about things like client briefs and research papers? My suspicion with them is that the law firm would retain copyright of these. That would be the default unless their contract with the town explicitly said otherwise. Beyond that, all you are paying for is what is between the ears of the lawyers. As the law firm no longer works for the town, I have a difficult time seeing how there is any conflict for them to continue working for the former mayor, and continuing to use the previous work too. I’m sure this does not make many happy, but I think it completely legal and ethical.

    Just my $0.02. I’m looking forward to hearing other views on this.

    • Anonymous said

      What is IANAL? I wish people wouldn’t write in code. Is it just that your finger slipped when typing and added an ‘A’ to the front of the word? If you mean that you are not anal, just say so! Although from the way you write, I think perhaps you may be.

    • Anonymous said

      Dude, If you don’t know a word, look it up.

      http://en.wiktionary.org/wiki/IANAL

      Do you really expect other people to both know, and only use, your vocabulary? Sheesh.

    • Anonymous said

      Too bad it’s not a word but a stupid short form. It’s typical of those in social media that like to write but don’t like to write a lot – because they are lazy. More of an example of the decay of our society.

      I am surprised that Watts doesn’t have a dictionary online of his own.

      ROFLMAO
      BRB
      WTF?

    • KA-NON said

      “Dude” aka Anon at 6:00 am,

      Did it occur to you that Anon at 7:02 had figured that out, and was just taking the piss?

      Sheesh.

    • Christopher Watts said

      To Anonymous 9:19AM:

      I’m not sure why this poster believes that I should have a dictionary of acronyms. A review of any of my posts here or elsewhere will show that I don’t use them extensively.

      I do use one on occasion and don’t see anything wrong with it and believe it to be appropriate here:

      WTF?

      Never have I head anyone claiming that they would prefer to read all online communications in long form.

      Discussion forms like this one are not where people write dissertations, prose or instruction manuals.

      As for Acronyms being responsible for the decay of our society.

      Double WTF?

      Or maybe this can be understood as DWTF?

      “Using acronyms is “typical” of “those in social media” and they are used due to laziness.”

      Expediency and laziness are two different things and this poster is obviously confusing the two.

      Communications and linguistics are not static, but flexible. Language and technologies compliment and clash, and ultimately change.

      Although I do not have a dictionary of acronyms there are several available online for those fuddyduddies.

      Here are a couple for the ones, like this poster, who are obviously too lazy to look them up themselves:

      http://www.gaarde.org/Acronyms/

      http://www.urbandictionary.com/

      Perhaps if this poster is still frustrated with communicating in the year 2011 they can always file a complaint with AAAAA (American Association Against Acronym Abuse)

    • Anonymous said

      LOL, vvhat a noob. Y R U ups3t w1th h0w ppl rite on the w3b? I speek l33t and ROTFLMAO when I C U. U n33d 2 C m0r3 pr0n.

      pwned!

    • Anonymous said

      As the person who asked what IANAL means, I am rather taken aback by a couple of the responses. First of all I am not too lazy to look something up in a dictionary. I did not know that the dictionaries that they refer to even exist. I am also not a fuddyduddy but simply someone who likes to write and read comprehensible language. Perhaps I grew up in a different era from the respondents but that should not make me a target of ridicule for asking a simple question. The dictionary I generally refer to is the Oxford English and I didn’t find it in there.
      When I was young, I certainly did not sound off at my elders for not understanding the meaning of “modern” words and contexts the way you have sounded off at me.
      I believe Mr. Watts recently wrote a piece in the Auroran about ageism and respecting seniors. I suggest he practises what he preaches.

    • Anonymous said

      “Perhaps I grew up in a different era from the respondents but that should not make me a target of ridicule for asking a simple question.”

      You did not simply ask a question. You asked a question, then stated that you should not have been made to ask, then you topped it off with an insult.

      In my day, children were asked to leave the supper table when they behaved in this way. What’s your excuse? Respect goes both ways you know.

    • Anonymous said

      Re: Anonymous @ January 14, 2011 at 3:49 pm

      Oh SNAP….. take that Watts

    • Matt Maddocks said

      Hey snappy, I realize this blog allows anonymous postings & comments, and I’m fine with that generally, but if you’re going to take a shot at Chris, at least have the cojones to sign your name.
      Chris’ comment (disclosure: he is a friend of mine) was directed at another “anonymous” who was slagging off on “those” in social media (umm, that would be all of us by the way), and brought the “Watts” name into it. Also, Chris didn’t say anything about old people. That was assumed by another “anonymous” posted after Chris’ comment (sheesh – why don’t all you anonymouses get together and at least pick #1, #2, #3, etc, so we can keep track?)
      “Fuddyduddies” isn’t age-based, it means anybody who has a crabby attitude, old, young, or in-between.
      FYI, Chris has been offering free “social media 101” type courses to seniors here in town, so they can make further use of this great form of communication.
      Preached & practiced.

    • Anonymous said

      Hey Matt,

      Maybe your friend should be nicer then when he responds to things here. Good that you have his back though.

      WTF?

    • Anonymous said

      To Anoymous at 3:15 Jan 14
      If what you wrote is considered to be literate, God help us all. I prefer real english.

    • Christopher Watts said

      To Anonymous January 14, 2011 at 3:49 pm

      First off, you posted anonymously so how am I supposed to know that you are an elder or a senior?
      My response didn’t reflect that I knew, or care.

      I know several people who are fuddyduddies that are not seniors because fuddyduddyism is a mindset, not an age bracket.

      Likewise there are several seniors who do embrace change, which is what I recognized and was speaking to in my column that you referenced.

      A fuddyduddy is someone who is resistant to change, which by your statements you seem to overly qualify.

      Your statement “I wish people wouldn’t write in code.” exemplifies this.

      You ask “What is IANAL?” when, failing to find it in a dictionary, perhaps if you simply searched online instead of posting it you would have had your answer, both more expeditiously and without subjecting yourself to any “perceived” ridicule.

      There are several tools for gaining understanding of “modern” words as you so put it that are more valuable than the dictionary you generally refer to.

      The first result of a Google search would have taken you here: http://en.wikipedia.org/wiki/IANAL

      IANAL is not code, it’s an acronym for “”I am not a lawyer.”

      I’m pretty sure Acronyms have been around longer than them there interwebs.

      Just out of curiosity, let’s look it up:

      “acronym”. The Compact Oxford Dictionary of Current English: “a word formed from the initial letters of other words (e.g. laser, Aids). — ORIGIN from Greek akron ‘end, tip’ + onoma ‘name’.

      When you state “I am also not a fuddyduddy but simply someone who likes to write and read comprehensible language.” I say good for you. Then you will no doubt agree that acronyms are a component of comprehensible language.

      What seems to be confusing you is the difference between efficiency and lazyness.

      Here’s a quick question, when writing (or typing) do you write “Mister” or use the abbreviation “Mr.” ?

      If you use the abbreviation by your logic does that make you lazy?

      If you truly believe that than the only thing left to say is WTF?

      I’m glad that you enjoy reading my column in the Auroran, perhaps you will find this week’s helpful in re-approaching your concept of efficiency.

      If you truly someone who “likes to write and read comprehensible language” then I suggest you owe it to yourself to do just that.

      Language didn’t stop 30, or 50 years ago.

      Comprehensible language is a lifeform, it grows.

      Perhaps you can too.

      As for sounding off, I suggest you re-read your initial post as pointed out by another commenter:

      “You did not simply ask a question. You asked a question, then stated that you should not have been made to ask, then you topped it off with an insult. “

    • Christopher Watts said

      To Anonymous January 14, 2011 at 3:49 pm

      FYI

      Your precious Oxford English Dictionary has some recent additions, including the acronyms OMG and LOL: http://www.buzzfeed.com/sly/omg-lol-omg-lol-added-to-the-dictionary

    • Anonymous said

      To Christopher Watts March 25
      Yes I am quite aware of these additions. I didn’t need your link. Still didn’t hear that IANAL has been added though.

  6. Possible solution said

    The law relating to intellectual property is possibly the most complex facing the legal community.

    I am not a lawyer.

    Common sense should determine that the “intellectual property” contracted and paid for by a party, belongs to that party exclusively, in your scenario corporation B.

    There might be nothing wrong in the ex-president approaching corporation B, entering into an agreement to purchase the “intellectual property” at the same price that it had already paid architectural firm A, and with the consent of both, retaining architectural firm A to complete the design and oversee the construction of the house.

    Does this solve the problem?

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