With reference to decided cases and supporting your negotiation using relevant authorities, prepare a negotiation strategy. Your plans should also demonstrate a concrete assessment of the situation (according to your role brief), an analysis of all parties involved (interests, goals, BATNAS, WATNAS, perceptions, emotions), and well-developed agenda for how you plan to navigate the negotiation to reach the ideal agreement for your client. Approaching the negotiation task (Guidance) Identify that this problem question concerns ownership of copyright in the original works in the context of a claim over copyright by an employer.
Before ownership of copyright can be determined, students must first apply the rules as to authorship and works made in the course of employment. The question is who holds the copyright over the work, and whether MegaChip could demand that Julie be credited as creator of the work. In this example, information has been provided that details the main activities of the employer, MegaChip, and the role of Hasan in the company. These facts may be important for determining whether the act of designing an app counts as being a work created in the course of employment, or whether Hasan is indeed the first owner of the copyright. The second aspect to consider is whether MegaChip’s demand could constitute a false attribution.
Important legal points to include in negotiation: Hasan is the creator of the work and therefore the author of the ‘Swimmy Fish’ app (s. 9). However, even though the rule is that the author of the work is the first owner (s. 11(1)), if a work is created in the course of employment, then the employer is considered to be first owner (s. 11(2)). Therefore, the first issue to determine is whether the work was conducted in the course of employment. There is some ambiguity here, as MegaChips creates app software than runs on tablets for the fast food industry, and Hasan has created an app game, ‘Swimmy Fish’. One argument could therefore be because the employer creates apps and the employee has created an app, even in his own time, this has been done in the course of employment. As established in Stephenson Jordan & Harrison Ltd, the job description of the employee must be considered before this can be concluded. Hasan is not employed as an app designer, but as someone who ensures network security – while both involve computer systems, one is a programmer, the other a system administrator. The question also states that Hasan is an ‘amateur’ app developer. It may be that, on this basis, the conclusion would be that the app is not considered as being made in the course of employment, and therefore Hasan remains owner of the copyright. With regard to Julie, she could object to the public communication of herself as the creator of ‘Swimmy Fish’, as it would constitute a false attribution (s. 84). Mention that, often, contracts may have clauses regarding ownership of intellectual property, which may have a clause reversing the presumption of copyright authorship for works created in the course of employment (s. 104(2). Indicate that while Hasan may be owner of the right, he would be free to assign the economic rights to MegaChip. Discuss whether the outcome may have been different had Hasan been an app programmer rather than security administrator – while the two types of app may be different, because he would have been employed as an app developer, Hasan would be more likely to have made the app in the course of employment, even where the developing had been done in his own time. Indicate that as a general principle Hasan, rather than Julie, has the right to be credited as the creator of ‘Swimmy Fish’ (s. 77), a right that can be waived but not assigned, although in the case of computer software, there may be an exception to the right of attribution (s. 79).
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