Pair programming is a practice in which two or more people get in front of a computer and collaborate on writing program. Usually, one person is "driving" by typing the actual program, while the other person offers tips or direction. Suppose that two people pair program for a while, and only one of those people ever touches the keyboard. Does the person who never touched the keyboard hold any copyright over the produced work? What happens if the person who never touched the keyboard works for a large tech company, which claims copyright over the works of all of its employees?
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1 Answer
They both do
Specifically, this is a joint work (see Ownership of Work Copyright by Multiple Authors).
Copyright exists in the creative element of the work; not the physical embodiment although some (but by no means all) jurisdictions require the physical embodiment to exist.
If the non-"driver" had instead been dictating and the "driver" took everything down verbatim then the non-"driver" would be the sole copyright owner. However, because both contributed to the work, both own it.
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1I see in the Berne Convention "(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form". When you say not all locations require a physical embodiment are you saying some places do not require fixation? If so what would be an example - I presume a non-Berne Convention country. Commented Apr 21, 2020 at 16:34
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I guess I'm just confused by this because my understanding is that only the expression of an idea can be copyrighted, not the idea itself. Since the non-driver is only giving tips and direction (i.e.: ideas), while the driver is creating the expression of the idea, I don't understand how the non-driver is involved legally. It seems to me like there's some kind of spectrum from dictation to explaining computer science ideas. Commented Apr 21, 2020 at 18:53
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@GeorgeWhite Australia is an example (a Byrne convention country) - there is no requirement for fixation so speech is protected by copyright.– Dale M ♦Commented Apr 21, 2020 at 22:05
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@throwaway543254325432 of course there is a spectrum “write some code that does X” is not copyright. Actually dictating code is.– Dale M ♦Commented Apr 21, 2020 at 22:08
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I see this in the 1986 Copyright Act "" dramatic work " includes a piece for recitation, a choreographic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise, . . . " It is only place I see "fixed". It seems to imply that a dramatic work not fixed is not copyrighted - as in elsewhere in the world. However I see below that a "lecture" can be copyright with no mention of fixation. This seems odd. Commented Apr 21, 2020 at 22:17