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The general rule is that if you are an employee software you create in the course of your employment belongs to your employer.

In the United States an employee can work for more than one company without issue. If a software developer worked for 2 companies as a regular employee (not a contractor) who would own the copyright to the software that person writes? To clarify both positions are as a software developer. Further suppose that no specific employment agreements have been signed (so there is no NDA, no non-compete, and no other contracts signed by the employee with either employer), so the only rules that apply are the "default" rules.

Yes many companies require software developers to sign various kinds of agreements ranging from non-compete to contracts that assign everything the person makes no matter what the "something" is to the company, but in this case we are supposing that no such agreement of any sort have been signed.

This question Vague clause in employment contract discusses a specific clause in a contract, but my question is supposing there is no specific contract in place between the employee and either employer.

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2 Answers 2

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A work made for hire is "a work prepared by an employee within the scope of his or her employment" or a commissioned work. See 17 U.S.C. § 101. "In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright" (17 U.S.C. § 201(b)).

The U.S. Supreme Court has said that when determining whether the work was made for hire, general common law agency principles apply (Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). The U.S. Copyright Office has set out some example factors to determine whether the work is made for hire for a purported employer (Compendium, § 506.2). Some of these relate to agency in general; others seem to relate to which employer (if there are multiple) would have claim to the copyright:

  • the location where the work was created;
  • the source of the instrumentalities and tools used to create the work;
  • whether the work is part of the regular business of the hiring party;
  • whether the work is the typoe of work the hired party was authorized to perform;
  • whether the work occurs substantially within the authorized work hours and space limits of the hired party;
  • whether the work is actuated, at least in part, by a purpose to serve the hiring party.

See Copyright Act, s. 13(3):

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, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

What matters is whether the work was made "in the course of his employment by that person." The question to ask is: when the work was created, "for whom was the person working at that time?"

A Canadian court has not had to grapple with the problem of competing employer claims to copyright over a shared employee's work, but I predict they would look to similar factors as listed above to determine for whom the employee was producing the work.

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my question is supposing there is no specific contract in place between the employee and either employer

In that case, everything the employee makes while working for one of the employers belongs to that employer and everything the employee makes on her own belongs to her. If the employee is submitting the same code as work product to both employers then she has bigger problems.

To be clear, without an agreement to the contrary (and, in some places, notwithstanding an agreement to the contrary) code that one creates on one's own time, using one's own equipment, for a project that does not concern an employer is not "created in the course of employment."

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  • The problem is "while working" and "own time" is often unclear when hired on a salary basis, like most professionals are.
    – user71659
    Oct 12, 2023 at 18:56
  • Which ask certain questions, like is the product most similar to what company A or B hired. Your answer needs to elaborate on this.
    – user71659
    Oct 12, 2023 at 19:02
  • @user71659 that's why we have courts. But under US "work made for hire" doctrine I suppose the question of whether the code was written in response to something the employer had directed the employee to do is probably decisive. If you're writing a novel on the sly at work, it is not a work made for hire.
    – phoog
    Oct 12, 2023 at 19:03
  • @user71659 "Your answer needs to elaborate on this": the answer seeks to address an apparent misunderstanding about the phrase "in the course of one's employment." The question isn't detailed enough to elicit the detailed answer you seek about how different fact patterns interact with the legal principle. If you want such an answer you can write it yourself or ask a more detailed question. But in the end, if it's not obvious whether a given piece of code was written for one employer or another, well, that's for the court to decide. Similarity is a common-sense criterion.
    – phoog
    Oct 12, 2023 at 19:08
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    @IñakiViggers it happened shortly after I rebuffed user71659's criticism, so it's probably safe to assume that the reasons given in that criticism are the reasons for the downvote.
    – phoog
    Oct 12, 2023 at 22:28

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