I am working through Module 3, “Contract Legal Considerations” and the slides on copyright in your “Skill Builder” course, and the statement below was troubling to me. I was under the impression that if I “hire” a contractor or consultant to create a document for me, I own the document that I have paid for, and I can therefore do with it as I see fit. Is this incorrect?
Thanks for your question. It comes up a lot.
The short answer is no, you don’t have the right to copy a product, even if you’ve paid for it. The copyright legislation requires copyright to be assigned, in writing, after the product is created. Those clauses that say ‘all property produced as a result of this contract belongs to us’, or wording to that effect, have nothing to do with copyright. That just means that the physical, tangible product belongs to you; it doesn’t mean that you have the right to make even a single copy, unless you have secured a licence to make up to X number of copies, or a complete assignment of copyright.
Shocking, we know! But take this risk with a grain of salt. If there is no commercial value to the product – for example, a specific report on a specific process that no one but your organization uses – then the risk of ever being challenged for breach of copyright is small indeed.
A much bigger risk presents itself when copying books, maps, drawings, blueprints, training materials, software, etc., since the supplier can presumably use the product for other clients and/or other projects.
Regardless of risk, however, the proper approach is to tell the supplier that it will be required to assign copyright (or provide a specific licence) as part of its deliverables. Include this provision in the RFx, if there is one, and in the subsequent contract, and then make sure that you get the signed assignment to keep in the file, before you pay the supplier in full.
This article was published on May 5, 2016 in The Legal Edge
Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.