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I was hired to create a computer program. The client gave me directions on what it should do and how the UI should look like (complete with pictures). No formal contract was ever made, and I realize now this was a mistake. My question is, in the absence of everything else, am I allowed to post the code on sites like Github and give it an open source license? This might upset the client as they may be intending to sell the program. My friend pointed out, an idea is automatically copyrighted when someone comes up with it. So the client would own the program because they came up with the need for it and its functionality. Is this correct? If I'm not their employee but a contractor, how might this affect it? This in Canada.

The program is relatively simple and doesn't contain any trade secrets or proprietary business logic (it's more of a productivity tool for the average PC user).

TL;DR would it be breaking the law if the contractor made the source code available to the public even if the client didn't want them to (if no contracts were agreed)?

  • Have you considered asking the client first? Much better to get clarity now than disappoint a client and tarnish your reputation into the bargain. If it wasn't specified originally, you can reopen negotiations. – Patrick87 Sep 21 '17 at 1:58
  • Clearly there was some sort of contract, i.e., "we will pay you $x if you create this program for us." At the very least, they would acquire a perpetual, non-exclusive, license to use your creation, regardless of who might own the copyright. If they wanted something else (e.g., exclusive license or copyright ownership), they could have asked for it, in writing. – Upnorth Sep 21 '17 at 16:50
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Your friend is wrong, because an idea is never copyrighted, only a concrete expression of it.

The Canadian Copyright Act §13(3) says

Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright...

Otherwise, the author retains copyright unless it is assigned by a written and signed agreement.

Two tests involved in sorting the "work for hire" question out are whether the person is an employee, and whether the employer has control. There is a difference between a "contract of service" and a "contract for services". If you are an employee of a company, you have a contract of service with the company. If you are hired to do something, such as fix wiring or trim a hedge, you have a contract for services. What you describe is a contract for services. As the author, you have the right to distribute it as you see fit.

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Since there is no contract, the client might tell you that they are not paying (or want their money back) if you publish it under some open source license. So what are you going to do then? You are trying to shaft the client. The client might shaft you back.

Even if the client "only" takes you to court and loses their case, you will be financially in a hole.

  • If the client files and loses a frivolous lawsuit, might they be ordered to pay the expenses and costs of the defense? – Upnorth Sep 21 '17 at 16:54
  • Why would this be frivolous? There have been cases where a company paid for software to be written for them, it turned out the software delivered was GPL licensed, and they got substantial money back. – gnasher729 Sep 21 '17 at 23:08
  • It could be frivolous if there is clear evidence that there was a contract for which OP would be paid. Obviously the client expects a "warranty of title" that the delivered product is "original authorship", but the question here was not about satisfactory content but rather the programmer's right to distribute it further. – Upnorth Sep 22 '17 at 16:14
  • I'd say the client is shafting me by having said they didn't want a contract and now trying to pressure me into one. – swandiving Sep 24 '17 at 11:48
  • The question doesn't mention anything about the client saying they didn't want a contract, and doesn't mention anything about trying to pressure the poster into a contract. The question doesn't mention anything about whether the client accepted the software and paid for it. – gnasher729 Jan 25 '18 at 20:15

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