0

Does NDA give away the copyright of the source code that an independent contractor created after signing the NDA?

In those unilateral NDAs, there is a paragraph always says

"All Confidential Information and all of the Company's trademarks remain the property of the Company and no license or other rights in the Confidential Information or such trademarks are granted hereby"

What does this statement really mean? I have seen the same wording in several NDAs.

Tom
  • 159
  • 1
  • 6

2 Answers2

2

The wording in question has nothing to do with copyright. Presumably you have some other agreement that makes your programming effort a work for hire of the company or otherwise assigns them copyright. The NDA says you will keep some set of thing confidential.

George White
  • 12,659
  • 2
  • 26
  • 57
  • "The wording in question has nothing to do with copyright". It implicitly does. Copyright refers to the "privilege of multiplying copies of the same [production] and publishing and selling them" (Black's Law Dict. entry for Copyright, brackets added). One consequence of the clause at issue is that confidential information which is materially embedded in the source code precludes the re-use of that code elsewhere. – Iñaki Viggers Feb 12 '20 at 21:35
  • A lot of time there is only an NDA signed before the contractor starting to work for the other party. Then when the contractor left and the company wants to get the source code, they will use this NDA as their evidence to fight for the source code. – Tom Feb 13 '20 at 19:24
  • It precludes the use of the source code of the programmer in the next cubical also and precludes the use of customer lists and confidential business plans. It does not transfer any copyright rights from the employee to the company. – George White Feb 13 '20 at 21:13
  • @GeorgeWhite "It does not transfer any copyright rights from the employee to the company". It de facto does (if only to the extent I mentioned in my answer) because the clause prohibits the programmer to exercise his copyright. The prohibition to exercise a right is tantamount to actually not having that right. – Iñaki Viggers Feb 14 '20 at 08:27
  • But it didn't give the right to anyone else. – George White Feb 14 '20 at 17:33
1

What does this statement really mean? I have seen the same wording in several NDAs.

The question of waiving the copyright of source code depends on the extent, if any, to which the code entails or reflects trademarks & confidential information the counterparty needs or needed to provide for implementation of its business rules (and finding that language in several NDAs means that either several lawyers regurgitate the exact same wording, or all such drafts you have seen happen to come from one same lawyer applying the same language over and over again).

The focus of the clause is the confidential information and trademarks, whence it would be quite a stretch to allege a priori that the clause implies the programmer's waiver of copyright of all his source code in the implementation.

Apropos of your mention of "unilateral", it should be pointed out that once the programmer accepts the clause it is binding. In other words, the clause cannot be voided merely on grounds that it was introduced by the customer/employer. This applies no matter how badly it limits the programmer's interests. Hence the importance for the programmer to timely reject the clause if he considers it unfair or inappropriate.

Iñaki Viggers
  • 1
  • 4
  • 68
  • 95
  • Plus, I like your comment on the "unilateral". The agreement has nothing to do with fair or unfair when people first look at it. – Tom Feb 13 '20 at 19:18