Who's Software

British Leyland, so legend had it, left its development to its customers, sending out rubbish products to owners who would always buy an Austin. After a few years of complaints the cars would gradually improve to the state where others would be at launch. I once bought an end of line second hand Allegro on this basis.

 

Computer software companies do something similar, although usually, but not always, overtly. A product bug-free at its launch seems to be the alchemist's stone of computing. A common practice is to put a test, or Beta version of a product to techies in the market, and in exchange for flattering them with this sneak preview, garner their feedback for further development prior to launch. The Beta version will usually be distributed free, and the informal testers will not expect direct financial benefit for their input. If they are developers of software, they may be able to start developing complementary products to run with, perhaps, a new version of an operating system.

 

What, though, is the position of a business which wants to use a particular software product, tailored to its own needs, and itself has a level of sophistication sufficient to contribute to its development? The customer may well then feel that it should have at least a share in the ownership of the final product, and be entitled to use it without the original developer's say-so. But, as a recent case has confirmed, it would be wrong.

 

First, a bit of law. If your employee writes some software, or in fact a book, paper or whatever as part of his employment with you, you will retain the copyright. If you commission a non-employee to do it, then that person will have the copyright unless you have an express written agreement to the contrary. Copyright can be held by more than one person, where there are joint authors, and in that case the consent of both would be necessary to use or exploit the rights.

 

Earlier this year the High Court was asked to decide a case which clarifies the position set out here. Fylde Microsystems Limited developed printed circuit boards used in radios, and also developed software to load onto those boards. Key Radio Systems manufactured and imported mobile radios. Over a considerable period Fylde developed some software for Key, called "Keyport", but made no separate charge to Key for doing so; its money was made by selling the circuit boards. During the development of the software, Key were heavily involved in specifying its requirements, detailing modifications, testing, and as it became increasingly familiar with the software, suggesting software adjustments and fixing bugs. There was no discussion about the ownership of the software; there was not even a written contract between Fylde and Key Radio.

 

One fine day, a customer told Fylde that Key Radio had loaded the Keyport software onto circuit boards not supplied by Fylde. Fylde sued for copyright infringement; Key Radio claimed joint ownership in the software as joint author. It failed. Its role was likened to that of a Beta tester. The judge found that although Key contributed to the testing process, it was not a creator of Keyport.

Many businesses have software written or adapted for them; many have no written agreements. They have then no right to sell on, or usually even work on the product - even a sale of the business may not imply a right for new owners to use licensed software. A prior awareness of the issues in and around the Fylde case is an important component in today's IT consumer business.

 

Paul Berwin is a member of the Society for Computers and Law (and has written for its journal) and may be contacted on PaulBerwin@berwin.co.uk or on 01423 543101