Following Peter's earlier post about the Clearspring v Businesslinx judgment, I thought I would contribute my own thoughts on the case. Clearspring commissioned some software implementing a database which reflected their core operating procedures. Clearspring wanted to licence this and claimed exclusive rights to the development. The Court followed Liverpool CC v Irwin (1977) AC 239, law originating in the muddy reaches of the Thames, and in a re-run of a number of previous similar disputes only implied a licence from the developer for Clearspring to use the development in their own business, and a prohibition on the developer using the information provided by Clearspring in the developer's work for other clients. The lesson of course is first think, then ink - put the ideas in writing and sign on the dotted line.
Should the law be changed so that someone commissioning software owns rights in it? The Government proposed this in the last major revision of copyright law, but backed away under pressure from many direction -- for the same (good) reasons that Clearspring lost their claim: ideas, algorithms and code are the tools of the developer's trade, and they need to be able to re-use them in subsequent developments. Maybe, however, it would help if there were more explicit rules in the absence of any other agreement, rather than relying on legal principles of implied terms in a contract, developed from barges which run aground in the Thames. Or should the government be encouraged not to meddle, and to leave it for common sense (and the lawyers) to prevail? Are there are more than enough idiosyncrasies in rights in software already?
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