[internetworkers] does the client have the right to have my source code?
jim at ibang.com
Fri Apr 28 10:04:43 EDT 2006
On Apr 28, 2006, at 3:38 AM, Tarus Balog wrote:
> Most work you do as a consultant to another company falls under the
> category "work for hire". In that case there is usually a clause in
> the contract that states the hiring company owns, in its entirety,
> your work product: i.e. your application and your source code. They
> are paying you to write it, thus they want to own it. It's very
And herein lies a problem, esp. for consultants, which is the proper
handling of "background technology."
Clients typically hire a consultant for their prior expertise in the
problem domain. Meaning that the consultant has done similar work,
and the client hopes to benefit from that experience.
Frequently this experience is embodied in tools (code libraries,
templates, etc.). Like a skilled cabinet maker, a good developer will
build special tools that encapsulate knowledge and make the job go
more smoothly. These represent a long-term investment, and also a
"snowball" of added value that is available to succeeding clients. In
contracts, these tools are called "background technology" or
"consultant's materials." (And probably other terms as well. Anybody?)
So when background technology is used to build a solution, who owns
the background technology? Depending on how a given solution is
built, these tools might be part of the source code, or might have
*generated* that code. (This begs the question of what "source code"
means, if a code file is an artifact of another code-generating tool.
Obviously, it's best to clarify the boundaries between the solution
(the "work for hire") and background technology, or you might forfeit
the right to re-use your own tools! I sometimes use a consulting
agreement with a place where these tools can be itemized.
I've found that a win-win arrangement is to grant the client a non-
exclusive right to reuse/repurpose/etc the background tech, while
also retaining those rights for myself. Nominal ownership is a minor
issue IMO, it's the *rights* that count.
Bonus fun fact: It is my understanding that, in the absence of a
contract, all rights and ownership belong to the creator.
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