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Software/Acquisition/Development - Know Where Your Software Has Been - Protect that Code!
Mar 1, 2001
This is not meant to be a lecture on the legal do's and don'ts of developing software offshore. But if you might ever acquire software, or decide to develop it offshore, read on. And this includes those of you buying the rights to hardware devices that may involve a significant software component.
And so, we offer a cautionary note.
In order to qualify for copyright in Canada, the conditions applying to authorship or publication prescribed by s. 5(1) of the Copyright Act must be satisfied. Generally, this requires an author to be a British subject, a citizen of or ordinarily resident in a treaty country, or a resident within "Her Majesty's Realms and Territories".
With the more frequent demise of some countries and the emergence of others out of the ashes, it is possible that one is contracting with a person who does not meet these conditions. The consequences can be disastrous, as the proprietary rights in the software may be virtually non-existent. If this condition cannot be met, it may be possible to claim copyright in a work first published with "Her Majesty's Realms and Territories".
In all cases, it is prudent to look into the level of copyright protection, if any, in the country of origin of the software.
And if you have ever wondered why language like this is included in the warranties and representations part of purchase agreements for software products, now you know. If enough money is involved, you are wise to determine who has the legal ownership of the components of the software being acquired, as part of the due diligence surrounding acquisition. You might be surprised at the answers you get from your developers when you question them - don't be surprised if they have included components they refer to as "freeware" and open source (which are topics for another day).
And lastly, this caution serves as a good reminder not to forget first principles (which can often be overlooked in the heat of the moment) when assessing one's legal position in a given business situation.
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