Chapter 4: A Futile Chore

Footnote: Unfair Contracts of Employment

An employee is paid for the time he spends applying his knowledge and skills to the work for which he is employed. This time is normally between 9am and 5pm Monday to Friday. But employers, through unfair contracts of employment frequently try to lay claim to far more than they pay for.

I ran my software business for 15 years. During this time I wrote a lot of software. I wrote some of it for clients. This software is therefore theirs. At least those who paid for it. However, most of it I wrote for myself. I wrote it in my own time at my own expense. It is therefore my own intellectual property. It does not belong to anybody else. Over my past 7½ years of unemployment I have kept my skills at the leading edge by writing further software in the latest languages and for the latest platforms. I have thus accumulated a large library of software and documentation.

A contract of employment is worded by the employer's lawyers. It is non-negoti­able. The employee has no say in it. He either accepts it in full exactly as it is or he for­feits the job he has been offered. In a legal sense the employee has a choice. In a practical economic sense (especially if he is currently unemployed) he does not have a choice. Provided he is not currently unemployed he is always free to apply for a different job with a different employer. However, in such matters all employers tend to follow suit.

All the contracts of employment by which I have been bound contained clauses relating to intellectual property. They decree that in effect the employer owns any and all code written by me while I am in their employ. This is reasonable provided 'in their employ' means the time for which I am paid, namely, 9am to 5pm Monday to Friday. Whatever software I create outside those hours is none of my employer's business, provided I do not use my employer's resources to do it. Nevertheless, I suspect that my employer's lawyers would interpret this to mean that he owned whatever I wrote during the calendar period for which I was employed.

However, contracts of employment invariably go further, giving the employer the right to have my home searched and to confiscate any software found there. This is neither reasonable nor fair. It implies that I have no business possessing any soft­ware stored at my home irrespective of its origin.

Since the spread of home PCs I have never been employed. Hopefully, contracts of employment nowadays allow for the possession of the software used in home PCs. I expect that if the software one possesses is a well-known popular package for which one has an invoice as proof of purchase, then that is acceptable. However, I suspect that any bespoke software such as special-purpose Java or C++ class files found at one's home without a corresponding invoice will be open to confiscation under these clauses. And I have about 40 boxes of diskettes full of them.

The presence of these clauses means that in return for the salary he may pay me, my employer receives more than just the time I spend applying my knowledge and skills to the work for which I am employed. It also in effect gives him automatic title to and possession of all the software I have ever written in my own time at my own expense. If nothing else, this software contains many highly tuned reusable code fragments and even complete functional units which could be embedded with little modification in a variety of products. The techniques they embody could be applied even more widely.

The employer's reason for including the clause may well have been to protect his own intellectual property from theft by employees. It nonetheless offers him poss­ession by default of intellectual property which truly belongs to his employee and over which he has no rightful claim. Of course some would accuse me of being para­noid and assert that no employer would ever enforce such a clause inappro­priately. If so, then why include such a broad brush clause which so strongly protects the employer's interests and leaves the employee so woefully exposed. I hold the answer to be self-evident.

There could be one perfect and neat solution to the whole thing. The large corp­orate interests could return their ill-gotten market shares to the artisans who do the work. Then there could be no question about whose intellectual property it was.

Parent Document | ©May 1998 Robert John Morton