Trying to figure out who owns a software copyright can be tricky – and if litigation ensues, the issue of ownership can move in unexpected directions, Toronto civil and commercial litigator Patrick Summers writes in Lawyers Weekly.
“Is there an employer? Who is the employer? Has the copyright been assigned? A case involving all these questions and how an alleged copyright infringement in a software program went in an unexpected direction for the plaintiff, was recently dealt with by Federal Court of Canada,” explains Summers, partner with Birenbaum Steinberg Landau Savin & Colraine.
In Harmony Consulting Ltd. v. G.A. Foss Transport Ltd. which was later subject to a ruling in the Federal Court of Appeal, Summers says that the court was dealing with a man identified as Chari, who had authored a software program for G.A. Foss. Harmony Consulting Ltd. was the only named plaintiff, claiming for, among other things, copyright infringement.
“At trial, trying to justify the naming of Harmony as plaintiff, Chari testified that at the time of the software’s creation, he made a “mental assignment” of the software to Harmony,” writes Summers.
However, he says, the trial decision determined that Chari was not even the first owner of the copyright and that the copyright could not have been assigned to Harmony. Because Chari was an officer and shareholder in a company called Atrimed Medical Supply Inc. at the time the software was written and because Harmony was not incorporated at the time, Atrimed was found to be the actual owner of the copyright.
The “mental assignment” claim, says Summers, was also found lacking, because the assignment was not originally in writing.
“So, even through Copyright Act rules regarding ownership seem simple and straightforward, in litigation they can be anything but,” explains Summers.
“No doubt Harmony wanted the focus of the litigation to be on whether there was an infringement of the copyright it thought it owned, but as frequently happens when courts are asked to decide, the arguments veer off in many different directions than that which the plaintiff might have originally imagined,” he writes.
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