[OSM-legal-talk] Licensability of an employee's work

[Kathleen Lu]

Jurisdiction dependant, but here are two general concepts which I think are
relevant:

As the statute you quoted specifies, when copyright will belong to the
employer, it tends to depend on if the copyrightable work was made within
the scope of the employee's job. (If you're a software programmer, it would
be difficult for your employer to claim ownership a romance novel you
write, but easier to claim ownership of code you write.)

When an employee signs a contract, whether that contract is binding on the
employer depends on whether the employee had authorization to sign on
behalf of the employer, and sometimes whether it *seems* like to a
reasonably objective person dealing with the employee whether the employee
had authorization.

These two principles would be in tension with each other in the case of an
employer who claimed, on the one hand, that their employee's job was to
edit OSM, but on the other hand, the employee did not have authorization to
sign the Contributor Agreement, which would have been required for them to
do their job.

Thus, while it would be easy for an employer to claim ownership of such
edits, I think it would be difficult for that same employer to also claim
the Contributor Agreement does not apply.

-Kathleen


On Fri, Oct 18, 2019 at 3:04 PM Simon Poole <simon at poole.ch> wrote:

> The question is rather complicated and if at all can really only be
> approached on a per jurisdiction base as both employment regulation and
> certain aspects of intellectual property law differ widely by territory.
>
> So the 1st thing to clarify would be where this is taking place and which
> law is relevant.
>
> Simon
>
> Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton <
> bainton.ete at gmail.com>:
>>
>> Hi all
>>
>> Quick question arising from a 'lobbying' conversation:
>>
>> *If an employee edits the map in the course of their employment, has the
>> work been adequately licensed to OSM/the big wide Open?*
>>
>> According to UK Copyright Act 1988,
>> s. 11 (2) Where a literary, dramatic, musical or artistic work [F1
>> <https://www.legislation.gov.uk/ukpga/1988/48/section/11#commentary-c13754611>,
>> or a film,] is made by an employee in the course of his employment, his
>> employer is the first owner of any copyright in the work subject to any
>> agreement to the contrary.
>>
>> Can the employee be regarded, as far as OSM is concerned, as having
>> authority to license the work? Or rather, which is what I take to be the
>> more important question, if the employer became unhappy with OSM using
>> their employee's edits, would her remedy be against OSM, or against her
>> employee?
>>
>> Thanks!
>>
>
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