[thelist] Intellectual property on source files

[Andy Warwick]

on 25/1/01 5:16 pm, Mike Hardaker at mike at angloinfo.com wrote:

>> Often the issue is that they want to do their own amendments to the files,
>> often for cost issues, In this case, it's like asking Ford to give you all
>> the machining tools and blueprints, so that you can get Nissan to make the
>> car at a cheaper price, without all the R&D and testing costs involved.
> 
> True, but you *would* be allowed to add spoilers, diffeent wheels, a new
> carb... You'd void the warranty, maybe, but you *could* modify the product.
> Without sources, that can be hard in the case of a Web site.

True, but you also wouldn't expect Ford to supply you with the machining
tools or the engineers to add those wheels and spoilers. If you wanted to
completely replace the engine in the deliverable car, you would need to
start that section from scratch.

>> To put it slightly more in the realm of "art" and subjective stuff - that
>> our industry arguably has more in common with - it's like asking
>> the artist
>> of a portrait to hand over all his sketches, initial attempts and even his
>> paint and brushes.
> 
> Is it? Or is it like saying "I own this painting, and if I want to re-touch
> it myself I can."? This is a very grey area, I think.

I agree. Like everything, there are always shades of grey. But again,
retouching the picture would involve you hiring a new artist or having a go
yourself - you would not be entitled to the paint and brushes the original
artist used unless you bought them.
 
>> I would say - as a general principle - that your clients are perfectly
>> entitled to source files if that has been agreed, either up front or after
>> the event, and that an additional charge may be made.
> 
> A good rule of thumb, I'd say. However, I'd add that copyright must remain
> with the creator (so code can be legally re-used, if for no other reasons)
> and the client use of code must be contractually restricted - by which I
> mean that thay can modify the code *on that site* but not use it as the
> basis for a new site, or for resale, or whatever.

Absolutely. Myself, I am a big fan of open source software. For most web
pages the source is visible anyway. For PHP scripting I do I am happy to let
the client have source if he really wants it, as there is usually nothing in
there that is "restricted" in a IP or copyright sense. Often they will look
at the source, say "blimey, it's a little more complicated than I thought,
can you just do the amends in that case". Often they come away with a
greater appreciation of the work that goes in.

> In essence, they get a restricted-use licence.

Bang on. A car manufacturer like Ford, for instance, uses the same tools to
make the Escort and the Ka. In effect, your source files can be considered
the same way - they are tools of the trade that would incur an extra cost to
supply along with the agreed deliverable, and don't prevent you buying more
of those same tools.
 
> Of course, there can be problems if the code contains some really clever
> proprietary stuff that you don't want other people to see, under any
> circumstances.

Again, I agree.

The real question is that in supplying the deliverable does the source
contain anything that is unique to that client and they are automatically
entitled to - either because it is their IP or they have paid for it. In
most cases, and for most deliverables, there is lots of stuff that simply
takes time; the question then becomes is the client entitled to material
that will make the job for the next person who works on it easier, if they
decide to go elsewhere. If that is the case, and that has been costed in,
then go ahead and give the client the source. If they haven't paid market
price for the "work-in-progress' material, then no, they shouldn't have it.
If they want to buy it they can. Of course, there is no substitute for a
contract that makes all this clear.
 
> If that's the case, I guess you need another thumb.

I often think that in this industry we could all do with extra thumbs, hands
and hours in the day.

Regards

Andy W