The Importance of Clarifying Intellectual Property Rights in Jointly Authored Software

Written by Zachary Kennedy
JD Candidate 2024 | UCalgary Law

In the constantly changing world of software development, joint coding ventures have become the norm. As groups of independent developers converge to develop intricate programs and applications, the need to clarify and establish intellectual property rights for jointly authored programs has never been more critical. Innovation in this field thrives on the collaboration of distinct and diverse minds. Still, when done without a well-defined framework, the potential for authorship disputes, the preservation of moral rights, potential liability regarding usage rights, and commercial exploitation looms large. As such, there is a need to understand what rights each party is entitled to when engaging in any such collaboration, some of which will be covered by this article.
 
Rights in Joint Authorship
As defined in the Copyright Act, computer programs are considered "literary works" and are entitled to the protections and rights offered elsewhere.[1] Works of joint authorship are produced by the collaboration of two or more authors, where the contribution of one author is not distinct from the contributions of the other(s).[2] Real-world examples of joint authorship are multitudinous in the modern age: Hackathons, Game Jams, etc. As a particular example, one must look no further than GroupME – a chat app developed at the TechCrunch Disrupt Hackathon in 2010 by Jared Hecht and Steve Martocci, which was pursued as a business after the completion, ultimately being acquired by Skype for $80 million.[3] Establishing intellectual property rights can provide a framework for efficiently managing and exploiting such code. It allows for the smooth transition between a mere idea that a small group has worked towards making a reality and the entrepreneurial pursuit driven by a larger belief about the market's need for this specific technology.
 
Ownership of Joint Authored Works in Canada
Another critical reason for explicitly defining intellectual property rights in jointly authored code is to prevent disputes over ownership and usage. The author of a work is the first owner of the work of the copyright.[4] This means that each of the authors in a jointly authored work will be afforded the full suite of rights under the Copyright Act. Thus, they are granted rights to make assignments of their rights under the Act, limiting the ability of other joint authors to control who is involved with the copyrighted work. This is even more important when considering the term in which these rights are afforded – in the case of joint authorship, the rights afforded by the Copyright Act will exist during the life of the author who dies last and for 70 years after.
Further still, copyrights carry moral rights with them, which need to be waived independently from any assignment of the copyright.[5] These moral rights can be infringed where the work is used in association with a product, service, cause, or institution to the author's prejudice.[6] It takes only a little imagination to conceive of a situation where some such program was developed by a group of three, where two decided to spin it into profitability. Somewhere down the road, just as they start seeking serious capital, the third author comes out of the woodwork demanding a claim on the intellectual property on which their business is founded. Or where two authors might have drastically different ideas for using their code. Each of them is well within the rights afforded under the Copyright Act to pursue their diametrically opposed objectives, making it difficult for either to establish their business. While collaboration was simple initially, the transition into founding a company around some such technology proves far more difficult.
 
How Can This Be Addressed?
To pre-empt such challenges, developers engaging in collaborative coding projects should seek to clearly establish intellectual property rights early in the process. This involves delineating each contributor's role and outlining the extent of each of their contributions to the development of any code. They may also seek to enter into agreements where other parties agree to assign any works and waive their associated moral rights. It is imperative to clarify and establish intellectual property rights for jointly authored software is undeniable. Whether in open-source endeavours, business applications, or academic projects, collaborative coding efforts should be guided by meticulously drafted agreements that clearly outline the rights of each contributor.
By doing so, developers protect their coding endeavours and set the stage for a collaborative landscape that fosters innovation and can flourish without the shadows of uncertainty and conflict. With confidence in the protection of their contributions, developers are more likely to engage in future joint ventures. Clear intellectual property rights not only shield programmers' rights in the work at hand but also cultivate an environment conducive to sustained collaboration, fostering a market favouring innovation and giving developers peace of mind to charge forward with the development of potentially world-changing programs.


[1] S.2, Copyright Act, RSC 1985, c C-42 [Copyright Act]

[2] Supra.

[3] Wikimedia Foundation. (2023, November 25). GroupMe. Wikipedia. https://en.wikipedia.org/wiki/GroupMe

[4] Copyright Act, s.13(1)

[5] Copyright Act, s.14.1 and s.28.1

[6] Copyright Act, s.28.2(1)(b)