Re^5: personal code?

Can you post links referencing that? If so, then I'd be interested in reading them.

Also note that copyright harmonization may not mean what you expect. Copyright is fairly well harmonized between NY and CA. Both states agree on what it means to be a work for hire, and that whether a specific work is for hire depends on the employee's local state law and your employment contract. Both agree that the penalties for copyright infringement are as is laid out by the US federal government. Courts from one state will take into account precedent from the other. You therefore cannot get a NY court to enforce a copyright claim against a CA employee when CA law says that is not a work for hire, and a CA court will not protect you against copyright trouble stemming from someone from NY improperly contributing code that is a work for hire under NY state law. But this harmonization notwithstanding, CA residents and NY residents live under very different copyright rules.

In short in this case harmonization means that the legal fiction of copyright ownership is applied consistently to any specific copyright, but the results are not consistent for different people.

My understanding of copyright harmonization in the EU is that it is similar to what exists within the USA. There is agreement on the basics of copyright doctrine, and the basics of how those rules are to be enforced. EU countries have signed specific treaties, sometimes the EU has clarified those treaties, and then individual countries have passed local laws to implement those treaties. Those treaties include terms for recognizing copyrights from other countries covered by the same treaties. But nothing stops there from being differing rules on who owns a copyright.

In fact the USA is signatory to many of those treaties. And as a result, I would fully expect that a German court would be willing to enforce a copyright infringement case from a NY employer on the basis of that work having been a work for hire even though done on personal time, while the same court will refuse to enforce a similar case from a CA employer on the basis of the fact that the employer cannot demonstrate that they own copyright.

Comment on Re^5: personal code?

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Re^6: personal code? by LanX (Saint) on May 13, 2009 at 01:05 UTC
Well I'm not a lawyer, but AFAI can see, everything is based on: COUNCIL DIRECTIVE of 14 May 1991 on the legal protection of computer programs (91/250/EEC) Article 2 Authorship of computer programs "3. Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract." OK it's only the wrong side of the coin, but I doubt it leaves too much space for something like "I even own the copyright of your dreams at night" Cheers Rolf	[reply]
Re^7: personal code? by tilly (Archbishop) on May 13, 2009 at 01:44 UTC
To me that just says that the work for hire doctrine must exist. Look just above that to 1. The author of a computer program shall be the natural person or group of natural persons who has created the program or, where the legislation of the Member State permits, the legal person designated as the rightholder by that legislation. Where collective works are recognized by the legislation of a Member State, the person considered by the legislation of the Member State to have created the work shall be deemed to be its author. Look at the section I emphasized. Suppose a member state enacts a work to hire doctrine similar to New York's. They have clearly satisfied the minimum requirement in section 3. They have violated nothing that I read in the document. And by that emphasized section, the member state's designation of the copyright holder must be respected by all other EU states. Therefore nothing in that directive says that a member state can't enact a work to hire doctrine as draconian as New York's. And if any does, the effect of that directive is that all other states must respect that member state's allocation of copyright.	[reply]
Re^8: personal code? by LanX (Saint) on May 13, 2009 at 10:42 UTC
Complicated! Let me try to explain my thoughts with my limited English ... IMHO the passage you emphasized is there to allow the different realizations of "legal persons" in different countries. E.g. in Germany the author can only(!) be a natural person and not just a legal person (in contrast to the US) Anyway as I suspected the biggest differences are likely to be between continental Europe and the British Islands (including Ireland). The continent consists of so called "Droit d'auteur" states, where you can't transfer the right to be the author, you can only sell the right to use and sell the product. From a historical point of view, the legal system of continental Europe stems on the French Code Civil which was imposed where Napoleon's troups came along (like driving on the right side ;-). So if one find the same legal structures and traditions in France and Germany, it's VERY likely they are alike in all Central and Western European countries, with the big exception of Britain. I'm no lawyer, but knowing European history with all cross-influences I heavily doubt that the described New Yorker legislation can be found in continental Europe, because it would be in conflict with older legal traditions, which always emphasized the unsellable rights of the natural person who authored a creation! (UPDATE: While the mercantile anglosaxon tradition leaves more room for interpretation) OK, so the crucial question for the EU is "How is it handled in the UK and Ireland nowadays?" Does the employer have rights on the product an employee created after work? Most sources I read where in German, but the FSF has a special agreement called FLA which was adopted for European needs. You may want to google for the commentaries on the jurisdictional background. Cheers Rolf	[reply]