The concept of collaborative living,
just like the persons sought to live in collaborative living
environments, is genius. Why restrict working to a traditional work
environment? Why restrict learning to a traditional school or
University system? Through collaborative living, people can live,
learn and work, all in one place – and that place just so happens
to be a veritable think tank.
A pioneer in the concept of
collaborative living, is the collaborative living organization
Rainbow Mansion. Residents include programmers from Apple and Google,
and engineers from NASA. To be accepted into the house, residents
must pass an interview process resemblant of the interview process
utilized by notoriously tough recruiters such as Facebook and
Twitter. The first round screening questionaire, for example, asks
questions such as “what are two things you'd like to impact or
contribute during your life?” The house hosts talks and
presentations by people such as: Roger Penrose (whom you may not have
heard of, but who's prestige you'll understand when you hear that he
shares an award with Steven Hawking for his contribution to our
understanding of the Universe); Lawrence Lessig (professor at
Harvard Law School); and Steve Wozniak (who co-founded Apple with
Steve Jobs). The house has a laboratory set up in the garage. And
several
start-ups have been founded there, including a robotics company and a
satellite company.
As with Rainbow Mansion, the working
concept of any collaborative living environment is that, in order to
become a resident, an applicant has to be extraordinary in some way;
either a great artist, or musician or programmer or scientist or
philosopher. Moreover, it is expected that, once accepted as a
resident, that resident must contribute to the household by sharing
these talents. The household might throw a hackathon to create an app
for purchasing music concert tickets, or embark on a project to
convert the old vacuum cleaner into a powerful milkshake maker, and
each resident is obliged to participate in this event or project by
lending his/her skill set.
A foreseeable issue thus arises. What
happens when an event or project results in a copyrightable work or
novel invention, worthy of patenting and/or commercialization? A
hackathon might result in computer software or programs (such as
video games or virtual worlds), which are considered literary and
audiovisual works respectively, and are therefore copyrightable
works. A project might result in a new machine that is a patentable
invention. In such cases, who is entitled to claim ownership of the
work or invention?
Under the “work made for hire”
doctrine, copyright in a work vests in the person employing the
author to produce that work, rather than the author him/herself.
Moreover, for inventions not covered by copyright law, courts have
found implied-in-fact assignments to exist where employees were hired
specifically for the purpose of inventing, or assigned the task of
inventing a specific item, process or method. Thus, similar to rights
in copyrightable works, under certain circumstances, patent rights
may also automatically vest in employers.
Thus, there is precedence for automatic
transfer of intellectual property rights from an author or inventor
to his/her employer. One might think, how does this apply to
collaborative living scenarios, as residents of collaborative living
houses are not traditionally employed by the collaborative living
organization?
However, already, due to the advent of
start-up companies, the traditional concept of employment has been
blurred. In the recent case of Just Med v Byce, Byce was
treated as an employee for the purposes of the work made for hire
doctrine, despite that:
a) he was not paid a salary or
benefits;
b) he was not treated as an employee
for tax purposes by Just Med;
c) he did not fill out any employment
forms; and
d) he was not directly supervised by
Just Med.
If the courts are willing to blur the
traditional concepts of employment in such a way, to take account of
the modern realities of ambiguous work environments, it would seem
that it's only a matter of time before a collaborative living
organization tests the applicability of the work made for hire and
implied-in-fact assignment doctrines to a work authored or item,
process or method invented by the residents of a collaborative living
home.
As stated previously, it is a condition
of entry and stay that a collaborative living resident contribute
towards the events and projects run at the collaborative living home.
Residents are asked to leave if it is deemed that they are not
contributing. So, if contribution towards these events and projects
is a condition incumbent to their being a collaborative living
resident, then there is grounds for the collaborative living
organization to argue that any work or invention produced during
their residency arose 'in the course of' their residency, and is thus
covered by the work made for hire or implied-in-fact assignment
doctrine. If the colloborative living organization succeeds in this
argument, ownership in the works or inventions of residents could
well vest in the collaborative living organization.
Time will tell how the law plays out.
Until then, in the absence of clear laws, collaborative living
organizations and residents should take steps to protect their own
intellectual property interests.
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