diff --git a/Balanced_Employee_IP_Agreement.docx b/Balanced_Employee_IP_Agreement.docx deleted file mode 100644 index 9cf4c4f..0000000 Binary files a/Balanced_Employee_IP_Agreement.docx and /dev/null differ diff --git a/Balanced_Employee_IP_Agreement.md b/Balanced_Employee_IP_Agreement.md index 06152c6..ccc6655 100644 --- a/Balanced_Employee_IP_Agreement.md +++ b/Balanced_Employee_IP_Agreement.md @@ -1,42 +1,40 @@ -# Balanced Employee Intellectual Property Agreement 1.0.0 +# Balanced Employee Intellectual Property Agreement 2.0.0 This BALANCED EMPLOYEE INTELLECTUAL PROPERTY AGREEMENT is between person named below and [COMPANY NAME], a [State of Incorporation] corporation ("Company"). -**What is this?** This is the Company's Intellectual Property Agreement ("Agreement"). If you've worked in the technology space before, there's a good chance that you've run across one or more of these in the past. This document is the official, entire and exclusive agreement on what intellectual property ("IP") is yours, and what belongs to the Company. +**What is this?** This is the Company's Intellectual Property Agreement ("Agreement"). If you've worked in the technology space before, there's a good chance that you've run across one or more of these in the past. This document is the entire and exclusive agreement on what intellectual property ("IP") is yours, and what belongs to the Company. "IP" includes concepts, designs, developments, discoveries, ideas, improvements, inventions, trade secrets, trademarks, and works of authorship. **Why is this?** The Company needs to be clear on what IP it owns and has rights to. Its customers, employees, and investors depend on the Company having the legal rights to the products and services it is providing so that the Company can continue operating and doing business. The Company also believes that it's important to be clear on what it doesn't own. The Company doesn't want you looking over your shoulder every time you work on something personal or worrying that the Company will someday seize your open source non-lethal mousetrap simulation software. In other words, the Company isn't interested in appropriating your personal projects. -**Read this.** Please read this document and be sure you understand it before you sign it. Due to legal risk and corporate obligations, the Company cannot, by and large, negotiate its terms. If you feel you have a particular circumstance that keeps you from signing, please let the Company's legal department ("Legal") know. And, of course, you're always free and encouraged to get your own legal counsel to explain anything you're not clear on. +**Read this.** Please read this document and be sure you understand it before you sign it. Due to legal risk and corporate obligations, the Company cannot, by and large, negotiate its terms. If you feel you have a particular circumstance that keeps you from signing, please let the Company's legal department ("Legal") know. And, of course, you're always free and encouraged to get your own legal counsel to explain anything you're not clear on. Cool? Then, by signing this Agreement, and as a condition of your employment, you agree to the following: -1. **What the Company owns.** The Company owns any IP ("Company IP") that you create, or help create _as its employee or contractor_, but only if it meets one or more of these additional conditions: The IP (i) related to an existing or prospective Company product or service at the time you developed, invented, or created it, (ii) was developed for use by the Company, (iii) was developed or promoted with existing Company IP or with the Company's endorsement. You hereby grant and assign, and will grant and assign, to the Company all rights and interests in all Company IP. +1. **What the Company owns.** The Company owns any IP ("Company IP") that you create, or help create during the term of your employment or contract work, _within the scope of your responsibilities as an employee or contractor_. You hereby grant and assign, and will grant and assign, to the Company all rights and interests in all Company IP. All Company IP that you are involved with or create as part of your work for the Company is [work made for hire](http://www.copyright.gov/circs/circ09.pdf) under copyright law and compensated by your regular salary or pay. - "Company IP" includes concepts, inventions, designs, developments, discoveries, ideas, improvements, trade secrets, trademarks and any original works of authorship. - -2. **What the Company doesn't own.** If you create IP that doesn't fit into one of the categories listed above, the Company doesn't own it. In other words, the Company doesn't own any concepts, designs, developments, discoveries, ideas, improvements, trade secrets, or any works of authorship that you develop, invent or create that do not meet any of the conditions above in Section 2. This is true regardless of the computer you use to develop your IP, including the one furnished to you by the Company. +2. **What the Company doesn't own.** If you create IP outside the scope of your responsibilities as an employee or contractor, the Company doesn't own it. In other words, the Company doesn't own concepts, designs, developments, discoveries, ideas, improvements, inventions, trade secrets, trademarks, or works of authorship that you develop, invent, or create that do not meet any of the conditions in Section 1. This is true regardless of the computer you use to develop your IP, including the one furnished to you by the Company. The Company also doesn't own IP excluded by laws such as those listed in Exhibit A. You acknowledge you have reviewed Exhibit A and have read those laws applicable to you. -3. **Contribution of your IP to Company projects.** If you include your own IP – such as IP you created prior to working for the Company – into a Company product or service, it's still yours, of course, but you grant the Company a nonexclusive, irrevocable, fully paid-up, royalty-free, perpetual, sub-licensable, transferable, worldwide license to use it without restriction in any way or implementation, in modified form, or as is, by itself, or incorporated into another product or service ("License"). If you include your name in any project over which the Company would have rights under this Agreement, such as in a copyright notice or a comment in code or documentation, then the License covers the rights associated with that use of your name as well. +3. **License to Company for your IP in Company projects.** If you include your own IP – such as IP you created prior to working for the Company – into a Company project, it's still yours, of course, but you grant the Company a non-exclusive, irrevocable, fully paid-up, royalty-free, perpetual, sublicensable, transferable, worldwide license to use it without restriction in any way or implementation, in modified form, or as is, by itself, or incorporated into a product or service ("License"). If you include your name in any project over which the Company would have rights under this Agreement, such as in a copyright notice or a comment in code or documentation, then the License covers the rights associated with that use of your name as well. -4. **Your contributions to non-Company projects.** The Company recognizes that you may be engaged in work that requires you to submit IP to entities other than the Company, such as open source projects used by the Company. Please make sure that Legal is aware of what you're working on so that Legal can help with any licensing issues. If any project asks you to sign a contribution agreement, you should check with Legal before doing so. These agreements may be legally binding on the Company and so should be run through Legal first. + The License also covers any IP that you create, or help create during the term of your employment or contract work, _outside the scope of your responsibilities as an employee or contractor_, but only if it meets one or more of these additional conditions: The IP was (i) related to an existing or prospective Company project at the time you developed, invented, or created it, (ii) developed for use by the Company, or (iii) developed or promoted with existing Company IP or with the Company's endorsement. -5. **Works made for hire.** All Company IP that you are involved with or create as part of your work for the Company are [works made for hire](http://www.copyright.gov/circs/circ09.pdf) under copyright law and are compensated by your regular salary or pay. +4. **Check with Legal on using non-Company IP in Company projects.** When the Company relies on a license to use non-Company IP (such as IP you own or that was created by others and submitted to an open source project) in Company projects, Legal needs to be clear that the license is adequate. You agree to follow Company policies and procedures for using non-Company IP in Company projects, and to check with Legal for any situation not clearly and fully addressed by Company policy. -6. **No conflicts.** You agree that you don't have any outstanding agreements or obligations that conflict with those in this Agreement, and that you won't enter into conflicting agreements in the future. +5. **Check with Legal on your contributions to non-Company projects.** The Company recognizes that you may be engaged in work that requires you to submit Company IP to entities other than the Company, such as open source projects used by the Company. Please make sure that Legal is aware of what you're working on so that Legal can help with any licensing issues. If any project asks you to sign a contribution agreement, you should check with Legal before doing so. -7. **IP protection.** The Company might someday need to show the work that went into the development of IP that it uses or has used, or to make government filings to establish that it owns the IP or has rights over it. To help in those situations, you agree not to destroy any records you maintain relating to the development of any Company IP or IP under License (together, "All IP"), and, if the Company asks, to provide those records to the Company. You agree to help the Company secure and defend its rights in All IP, including after you leave the Company. For your help the Company will compensate you at a reasonable rate. If the Company is unable to secure your help, you authorize the Company to act on your behalf (as your agent and attorney-in-fact) in securing all rights related to All IP. +6. **No conflicts.** You agree that you don't have any outstanding agreements or obligations that conflict with those in this Agreement, and that you won't enter into conflicting agreements in the future. -8. **Confidentiality.** As an employee or contractor of the Company, you will have access to sensitive confidential information that is important to the Company's business. You are responsible for keeping this information confidential, including after you end your work for the Company. +7. **Cooperation.** The Company might someday need to show the work that went into the development of IP that it uses or has used, or to make government filings to establish that it owns the IP or has rights over it. To help in those situations, you agree not to destroy any records you maintain relating to the development of any Company IP, and, if the Company asks, to provide those records to the Company. You authorize the Company to act on your behalf (as your agent and attorney-in-fact) in securing all rights related to Company IP. You agree to help the Company secure or defend its rights in Company IP or IP under License in Section 3, including after you leave the Company. For your help after you leave the company, the Company will compensate you at a reasonable rate. - Please be aware, however, that under the [Defend Trade Secrets Act of 2016](http://uscode.house.gov/view.xhtml?req=title:18%20section:1833%20edition:prelim), you have the right to disclose trade secrets, confidentially, to the government or a lawyer for the purpose of reporting or investigating a suspected violation of law, or you may disclose trade secrets in documents filed under seal in a legal proceeding. +8. **Confidentiality.** As an employee or contractor of the Company, you will have access to sensitive Confidential Information that is important to the Company's business. "Confidential Information" includes non-public technical details about our products or services, financial information, business strategies and forecasts, customer data, or any other information, data or know-how that is valuable to the Company because it is not publicly known. Information is not confidential if it is or becomes known or generally available to the interested public by no fault of yours, or you already knew the information independent of having received it from the Company. - "Confidential Information" includes non-public technical details about our products or services, financial information, business strategies and forecasts, customer data, or any other information, data or know-how that is valuable to the Company because it is not publicly known. + You agree to only use the Company's Confidential Information for the purpose of performing your job and for the benefit of the Company. You will do your best to keep Confidential Information secret, including after you end your work for the Company. If you are not sure if something is Confidential Information, you should assume that it is, until you can confirm otherwise. - The Company's Confidential Information is sensitive and we expect that you'll treat it as such. You agree to only use the Company's Confidential Information for the purpose of performing your job and for the benefit of the Company. You will do your best to keep internal Company information secret. If you are not sure if something is Confidential Information, you should assume that it is, until you can confirm otherwise. + Please be aware, however, that under the Defend Trade Secrets Act of 2016, you have the right to disclose trade secrets, confidentially, to the government or a lawyer for the purpose of reporting or investigating a suspected violation of law, or you may disclose trade secrets in documents filed under seal in a legal proceeding. Print Name: ＿＿＿＿＿＿＿＿＿＿＿＿＿ diff --git a/Balanced_Employee_IP_Agreement.odt b/Balanced_Employee_IP_Agreement.odt deleted file mode 100644 index 32fdc30..0000000 Binary files a/Balanced_Employee_IP_Agreement.odt and /dev/null differ diff --git a/Balanced_Employee_IP_Agreement.pdf b/Balanced_Employee_IP_Agreement.pdf deleted file mode 100644 index d8c0e9b..0000000 Binary files a/Balanced_Employee_IP_Agreement.pdf and /dev/null differ diff --git a/CONTRIBUTING.md b/CONTRIBUTING.md index e3893fd..2bce5ae 100644 --- a/CONTRIBUTING.md +++ b/CONTRIBUTING.md @@ -31,12 +31,16 @@ Any change to the agreement text mandates a new version. Before merging any chan 1. Have changes reviewed by GitHub Legal. 2. Update version number in the agreement title/heading and commit to branch to be merged. -3. Update docx, odt, and pdf copies of the agreement and commit to branch to be merged: - - `pandoc --smart -f commonmark Balanced_Employee_IP_Agreement.md -o Balanced_Employee_IP_Agreement.docx` - - `pandoc --smart -f commonmark Balanced_Employee_IP_Agreement.md -o Balanced_Employee_IP_Agreement.odt` - - `pandoc --latex-engine=xelatex --smart -f commonmark Balanced_Employee_IP_Agreement.md -o Balanced_Employee_IP_Agreement.pdf` -4. Merge branch with new version. -5. Tag and push: `git tag vx.x.x; git push --tags` +3. Merge branch with new version. +4. Tag and push: `git tag vx.x.x; git push --tags` +5. Create docx, odt, and pdf copies of the agreement: + ``` + pandoc --smart -f commonmark Balanced_Employee_IP_Agreement.md -o Balanced_Employee_IP_Agreement.docx + pandoc --smart -f commonmark Balanced_Employee_IP_Agreement.md -o Balanced_Employee_IP_Agreement.odt + pandoc --latex-engine=xelatex --smart -f commonmark Balanced_Employee_IP_Agreement.md -o Balanced_Employee_IP_Agreement.pdf + ``` +6. Make a [release](https://help.github.com/articles/creating-releases/) from the tag created above, adding the docx, odt, and pdf copies as binary attachments. +7. https://github.com/github/balanced-employee-ip-agreement/releases/latest will show the release just made. This process may become more involved if and when required by translations, support for additional jurisdictions, or desire to have old versions available in source tree, rather than only in history. At this time it is not necessary to design these procedures before they are needed. diff --git a/README.md b/README.md index 3dab36c..0791cca 100644 --- a/README.md +++ b/README.md @@ -1,11 +1,13 @@ # Balanced Employee IP Agreement (BEIPA) -[BEIPA](Balanced_Employee_IP_Agreement.md) takes a balanced approach to assigning control of intellectual property (IP) created by an employee. The employee maintains control unless they created the IP in their employee capacity and the IP relates to an existing or prospective company product or service, or was developed for use by the company, or was developed or promoted with existing company IP or with the company's endorsement. A company using BEIPA doesn't try to claim control of an employee's free time knowledge production, nor does it try to extend company control past the period of employment. Think of BEIPA as a commitment to employee autonomy and "work/life balance" – for the mind. +[BEIPA](Balanced_Employee_IP_Agreement.md) takes a balanced approach to assigning control of intellectual property (IP) created by an employee. The company gets exclusive control of IP created in the scope of an employee's responsibilities. The employee maintains exclusive control of IP created outside of their employee responsibilities and not related to the company's business. For IP created outside of an employee's responsibilities but related to the company's business, the employee maintains ownership and the company gets a non-exclusive and unlimited license. A company using BEIPA doesn't try to claim control of an employee's free time knowledge production, nor does it try to extend company control past the period of employment. Think of BEIPA as a commitment to employee autonomy and "work-life balance" – for the mind. BEIPA was started as a reusable version of GitHub's employee IP agreement. Your company can use BEIPA too, and modify it as needed. If you'd like to help improve BEIPA for everyone, file an issue or make a pull request. While aiming to maintain the same "balanced" policy, we're keen to see feedback and suggestions for improving BEIPA and associated documentation. Please read our [contributing guidelines and instructions](CONTRIBUTING.md). Contributors to this project are not your lawyers and nothing in this repository is legal advice. See extended [disclaimer](#disclaimer) below. +PDF, ODT, and DOCX copies of BEIPA are [available for download](https://github.com/github/balanced-employee-ip-agreement/releases/latest). + ## FAQ ### Why are employee IP agreements deemed necessary by employers? @@ -16,11 +18,11 @@ In the United States, without an express agreement employers usually own [works Many employee IP agreements are very generous – to employers. To the extent [allowable by law](#in-what-jurisdictions-is-beipa-applicable), employers get control over everything employees create while employed, 24/7, over work created before their employment, and sometimes even to gain control over what former employees create through "non-compete" terms. For an overview, see _[The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property](https://ssrn.com/abstract=2517604)_. -BEIPA only claims control of what the employee creates during the period of employment, and only creations made for or relating to the company's business. There surely are many other approaches to relatively "balanced" employee IP policy. We encourage progressive companies and workers to share their [agreements and lessons](#what-are-some-other-relatively-balanced-approaches). +BEIPA only claims _exclusive control_ of what the employee creates during the period of employment and within the scope of their job responsibilities, and _non-exclusive freedom to use_ other creations relating to the company's business. There surely are many other approaches to relatively "balanced" employee IP policy. We encourage progressive companies and workers to share their [agreements and lessons](#what-are-some-other-relatively-balanced-approaches). ### Why would an employer want to use BEIPA? -Your best employees are creative all of the time. BEIPA is good for recruitment, retention, and motivation – just like other practices and policies that authentically promote work/life balance and autonomy: +Your best employees are creative all of the time. BEIPA is good for recruitment, retention, and motivation – just like other practices and policies that authentically promote work-life balance and autonomy: * Employees who feel they need to look over their shoulder and hide personal projects unrelated to the business are demotivated and set up for conflict. * You don't want to push out employees who feel they need to leave in order to work on a personal project unrelated to the business. @@ -40,7 +42,7 @@ Broad adoption of BEIPA should have similar beneficial effects for the communiti ### What does BEIPA mean for open source? -BEIPA makes it clear that an employee can contribute to open source projects in their free time, without needing employer permission. But BEIPA is not specific to open source: An employee can also work on a closed source project in their spare time, and own it. BEIPA controls when an employer owns IP created during a period of employment, and when an employee does. Open source adds another dimension, permission to *anyone* to use a knowledge product (e.g., software), subject to at most very limited conditions concerning provenance and sharing. +BEIPA makes it clear that an employee can contribute to open source projects in their free time, without needing employer permission. But BEIPA is not specific to open source: An employee can also work on a closed source project in their spare time, and own it. BEIPA controls when an employer owns IP created during a period of employment, and when an employee does (and when the employer gets a non-exclusive and unlimited license). Open source adds another dimension, permission to *anyone* to use a knowledge product (e.g., software), subject to at most very limited conditions concerning provenance and sharing. The IP owner of a knowledge product can decide to release the product as open source, whether the owner is an employer or employee, but doesn't have to. So BEIPA is mostly orthogonal to open source, but it will probably result in somewhat more open source developed by employees in their free time, simply because it removes a barrier or uncertainty around doing so. @@ -50,13 +52,13 @@ A different employee IP agreement *could* stipulate that all IP created by the e BEIPA covers all forms of IP. A BEIPA covered employee can file a patent on a free-time project unrelated to the employer's business, and the employee would own it. -If employer and employee have particular patent objectives, they could be spelled out in a different or complementary IP agreement or other policy. One example of such an agreement is the [Innovator's Patent Agreement](https://github.com/twitter/innovators-patent-agreement) from Twitter, a commitment from a company to its employees that the company will not use patents in offensive litigation without the permission of the inventors. Other pertinent policy choices include participation in anti-troll and non-aggression networks such as [LOT](http://lotnet.com/) and [OIN](http://www.openinventionnetwork.com/), as well as contributing to open source projects. +If employer and employee have particular patent objectives, they could be spelled out in a different or complementary IP agreement or other policy. One example of such an agreement is the [Innovator's Patent Agreement](https://github.com/twitter/innovators-patent-agreement) from Twitter, a commitment from a company to its employees that the company will not use patents in offensive litigation without the permission of the inventors. Other pertinent policy choices include participation in anti-troll and non-aggression networks such as [LOT](http://lotnet.com/) and [OIN](https://www.openinventionnetwork.com/), as well as contributing to open source projects. ### In what jurisdictions is BEIPA applicable? BEIPA was written for the United States. Feedback on making it more useful in any jurisdiction is most [welcome](CONTRIBUTING.md). -Even within the United States, limits on employer ability to claim *all* employee-created IP vary. In [California](http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&chapter=2.&lawCode=LAB&article=3.5.) the main difference made by BEIPA is that IP developed with company equipment or relating to the company's business, but in an employee's free time and which the employee is not involved in as an employee, is not owned by the company – the employee owns anything done in their free time which does not relate to their work as an employee. This recognizes that segregating one's life activities based on ownership of devices at hand or relatedness to an employer's potentially vast range of business that an individual employee is not involved in as an employee imposes significant cognitive overhead and often doesn't happen in practice, whatever agreements state. In some states with less employee-friendly law, BEIPA makes a bigger difference relative to the maximum employer control allowable by law often baked into employee IP agreements. +Even within the United States, limits on employer ability to claim *all* employee-created IP vary. In [California](http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&chapter=2.&lawCode=LAB&article=3.5.) the main difference made by BEIPA is that IP developed with company equipment or relating to the company's business, but in an employee's free time and which the employee is not involved in as an employee, is not owned by the company (but the company does get a non-exclusive and unlimited license if the IP relates the the company's business). This recognizes that from the employee perspective, segregating one's life activities based on ownership of devices at hand or relatedness to an employer's potentially vast range of business that an individual employee is not involved with as an employee imposes significant cognitive overhead and often doesn't happen in practice, whatever agreements state. It also recognizes from the employer's perspective that the employer has a real interest in being able to use any IP created during an employee's term of employment that is related to their business (note this expands and makes explicit the traditional "shop right" to use in lieu of demanding exclusive control). In some states with less employee-friendly law, BEIPA makes a bigger difference relative to the maximum employer control allowable by law often baked into employee IP agreements. See [Exhibit A: Laws Concerning Employment Agreements and Intellectual Property Assignment](Balanced_Employee_IP_Agreement.md#exhibit-a-laws-concerning-employment-agreements-and-intellectual-property-assignment) for a collection of some laws regulating employee IP agreements. Some of these may be helpful information for or even required notifications to covered employees. Currently only U.S. state laws are included. Contributions to coverage of other jurisdictions are welcome. @@ -64,23 +66,27 @@ See [Exhibit A: Laws Concerning Employment Agreements and Intellectual Property From an IP (copyright) perspective, the agreement is dedicated to the public domain (see [license](#license) below), so the answer is yes. But please be reminded that it is offered without warranty (see [disclaimer](#disclaimer) below). +### How is BEIPA pronounced? + +Think Beijing. Say Bay-pa. + ### What are some other relatively balanced approaches? #### Employer -* A [Model IP/OSS Policy](https://processmechanics.com/a-model-ip-and-open-source-contribution-policy/), based on the employee IP agreement used by Rackspace +Defaults matter _a lot_, but clear and well-executed processes that allow employees to own personal projects or contribute to open source can also contribute significantly to balance. A [Model IP/OSS Policy](https://processmechanics.com/a-model-ip-and-open-source-contribution-policy/) documents such processes in an employee IP agreement, based on practice at Rackspace. Google has publicly documented some of their processes for [personal project ownership](https://opensource.google.com/docs/iarc/) and [releasing open source](https://opensource.google.com/docs/releasing/). #### Employee -* [ContractPatch](https://sfconservancy.org/contractpatch/), information about negotiating employment agreements for open source developers +[ContractPatch](https://sfconservancy.org/contractpatch/), information about negotiating employment agreements for open source developers. #### Public Policy -* Various U.S. states are considering [non-compete reform](https://obamawhitehouse.archives.gov/the-press-office/2016/10/25/fact-sheet-obama-administration-announces-new-steps-spur-competition) +Various U.S. states are considering [non-compete reform](https://obamawhitehouse.archives.gov/the-press-office/2016/10/25/fact-sheet-obama-administration-announces-new-steps-spur-competition). ## Acknowledgements -[@hoolio](https://github.com/hoolio), [@jessephus](https://github.com/jessephus), and [@talniv](https://github.com/talniv), with feedback from GitHub employees and external counsel, created GitHub's employee IP agreement, which BEIPA makes re-usable. +[@hoolio](https://github.com/hoolio), [@jessephus](https://github.com/jessephus), and [@talniv](https://github.com/talniv), with feedback from GitHub employees and external counsel, created GitHub's employee IP agreement, which BEIPA makes reusable. ## Disclaimer