Ownership of the source code of customized software
Shweta Nandini
(Querist) 09 March 2012
This query is : Resolved
Respected Sir,
We own a small firm. Two years back, we hired a programmer to develop a customized software for us. We offered our man-power to help him build our software that assisted him in developing this software for 2 years.
The programmer was, however, very difficult to work with. After completing about 75% of the work, he received the full payment from us. After sometime, some disputes arose with him due to his difficult behaviour after which he took the source code of our software and left.
He is not willing to work for us anymore. And we do not want to bring him back to complete our work either. The software is left incomplete at 75% and we want to have the rest of the work completed by some other programmer. For that, we need the source code of our customized software which he took with him when he left.
We demanded the source code from him but he refuses to give it to us. Without the source code we will have to start our work from the beginning again and that will waste a lot of out time and man-power.
So my question is:
(1) Do we have the legal rights to demand the source code of our customized software under these circumstances?
(2) Is there any law in India (equivalent to intellectual Property laws in other countries) that states the ownership of the source code of this customized software?
Thank you for giving your valuable time.
Sincerely,
Shweta Nandini
V R SHROFF
(Expert) 09 March 2012
If it is agreed uopon, that sorce code is your property, you can claim it.
Otherwise also, as you had fully paid him, he must do the needful, or issue notice for damages, and return money or source ode,
You will succeed , as you fully paid him for his services, and spent on it.
Shweta Nandini
(Querist) 09 March 2012
Thank you Sir Rajeev for your response.
No, there was no written agreement between us. However, the programmer placed buttons and menus in the program as per our specifications, 75% of which are not yet functional which can prove that the work is not complete as per our specifications. Also, the programmer has put his name followed by the "developed by" phrase at three different places in the program itself, showing that he developed this program.
Thanks again.
sincerely.
Shweta Nandini
(Querist) 09 March 2012
Sir VR Shroff,
Thank you for your response.
There was no agreement between us as to who will own the source code. But without source code there cannot be any progress in the development of this software and we will have to spend another two years in developing it from the beginning.
V R SHROFF
(Expert) 09 March 2012
You can get a court order directing him to comply with your requirement. You must prove your payment to him, sources, staff, space, arrangement made by you,. No written contract may help you more than him.
Shweta Nandini
(Querist) 09 March 2012
Thank you sir again for your quick response.
The problem is, as I have already stated, we do not want to have it done by him anymore as he is very difficult to deal with. So we were wondering if we can legally get the source code then we can have it done by some other obedient well skilled programmer.
So can we get a court order directing him to give us the source code? This software was especially made for us so who owns this source code legally? Is it the programmer or us?
Thank you once again.
Sincerely.
V R SHROFF
(Expert) 09 March 2012
YOU, as u paid for it,
Of course, court decision is final, but u stand better chances,
why should work suffer,
u loose, not programmer,
u spent, not prg.
it was designed for your use.
Shweta Nandini
(Querist) 09 March 2012
Thank you sir V R Shroff for your response. It is so comforting to know this.
And thank you all the experts here who are giving their valuable time in helping people. All of you are doing a great job. Regards to all.
I will mark it resolved.
Anil Kulkarni
(Expert) 09 March 2012
The software programes are protected as Literary work under the Copyright Act 1957. As per sec. 17 (c) your company shall be the first owner of the copyright. I am forwarding the relevant text of the section.
17. (c) in the case of a work made in the course of the authors employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
If there is no written contract at least there may be a employment contract and the same could be useful to establish the relations. If not it can be inferred from circumstances but will need lot of efforts to prove.
If the persons has worked in your organization and on the server of the organization, the source code must be available in the server and any other computer programmer can retrieve it to take the work to logical conclusion.
If the person has worked on space outside of your company server then the matter is bit complicated and you need to take legal action to force him to divulge the source code and other details.
I am sure by the given set of details, your company has maximum chance of success, but mind well that it’s a long drawn battle. It may be worthwhile to check any other options such as compromises, voluntary arbitration or settlement of legitimate demands of the person (the management may feel they are not legitimate but a third person shall be in a better position to settle the dispute as arbitrator)are some of the effective solutions.
Deepak Nair
(Expert) 09 March 2012
Dear Shweta,
There is an option of filing a consumer complaint for deficiency in service and unfair trade practice.
Since you have availed the services of the programmer by paying him the necessary charges, you are a consumer of the programmer.
You can clim the source code as well as comensation and damages from the programmer.
ajay sethi
(Expert) 09 March 2012
In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
in the present case no written agreement has been entered into with programmer . the employer is owner of source code as programmer has dduring course of employmemnt developed source code . issue the ex employee legal notice .
Anirudh
(Expert) 09 March 2012
Mr. Deepak Nair's is a thoughtless answer. If the querist is a consumer, then the copyright will vest with the service provider!
If he is in employment of the querist, then the question of service does not arise.
In any case, there is no way by which the querist will be able to get anything - this is for the simple reason, it will not be possible for the querist to prove that the work that they were working on is the same software development - because according to the querist they do not have the code with them. Therefore, the person who had left the employment will always claim that he had left entire thing with his employer - he was working on some other project the source code is not with him!
Unless the querist have any documentary evidence to show that he was working only on this project and that considerable development (75% as claimed by them) had taken place prior to his leaving employment, it will be very difficult to retrieve the source code.
Guest
(Expert) 09 March 2012
Dear Shweta,
Your job falls within the category of "work for hire" basis and if paid for fully, the source code becomes the copywrite of the hirer (your company) and the service provider is bound to provide you the source code. Moreover, it is a case of customised software, where the copywrite as well as the source code becomes the sole property of the hirer and the programmer does not have any right to use for any other purpose.
If partially paid, the copywrite of the program along with the source code would remain with the contractor until fully paid.
If he has been paid fully as per the terms of agreement and has taken away the source code that would not only tantamount to infringement of the IT Act by way of hacking of the program, but would also be a case of infringement of copywrite.
You can therefore hire some good lawyer who is well conversant with the IT Act and Copywrite Act and file a case against the programming contractor to claim complete & faultless customised progamme along with damages on account of business loss.
adv. rajeev ( rajoo )
(Expert) 09 March 2012
