As a private contractor, I am often requested to make content for websites, social media platforms and more. As a result, I can spend hours or days writing tens of thousands of words, creating original images and videos and managing layout and design for clients.
Although made for clients, this content actually belongs by default to the web service contractor. International intellectual property rights specify clearly that the onus is on the employer to define whether or not any specific content is to belong to the employer – otherwise, content is the property of the person who created it.
Anyone else is attempting to get something for nothing, and use you and your hard-earned efforts ad infinitum for no cost or remuneration. Let’s see… what does that make an employer who tries to use your hard labour for their own profit, for free?
The fact of the matter is this:
As a contractor, your employer pays for your time to create content for them, usually in a per contract or per/hour/day rate. This creates content which get their site and business traffic and exposure.
Great! You get experience and money, they get promoted.
This is analogous to a performer giving a live concert. You get a cheque, the employer gets a concert.
Take the musical analogy a step further. Is it legal for the employer to secretly record your performance and continue to advertise it, put it on local billboards and say, use it as music in their shop to draw in customers to spend money in their shop.
So, why is web content any different?
The answer is, it isn’t. Any intellectual property you create, be it writing, art, music, graphic design and logo elements etc, is yours. That is how it is regarded in international law, in Canadian law (I live in Canada, eh?), and in business law.
And unless, as a contractor, you and the employer agree on a Scope of Usage Term in your contract, clearly outlining who owns what parts of what you originally create while working- and for how long, and whether the employer owns it solely or you have the right to re-use or re-purpose the intellectual property – well, the content is yours.
Employers have to be aware, and perform due diligence when hiring contractors.
Ignorance of the law is no excuse. Employers frequently try to blur the line between a contractor and an employee (especially if they are cheap, shifty buggers, and in the web work world, you will find a few of them). However, remember this:
- if you are not being paid benefits, employment insurance/social security costs, pension plan etc, have to pay your own tax for your services etc, you are not an employee
if the contract is between your company, or you as representative of your company, and the employer, you are a contractor
if no specific terms have been laid out in the contract between you and the employer to define who owns what parts of your intellectual property
then you are a contractor, and your intellectual property is yours.
Employers can make the decision to take you on as an employee and protect you with insurance coverage, benefits pay-ins, pension plan contributions and tax payments taken off your wage… or they can shirk and foist that off on you.
If they choose the second option, then they had best define what of the work you do for them stays with them, and in what manner, and for how long, otherwise it is yours to use and keep.
A bad employer will try to sneak access to your content behind your back, wanting access to the entirety of the site they contracted you to maintain and not specifically including access or right to backups etc in the contract. They will, when you leave, request access to your content. They will suggest that you shouldn’t use it elsewhere. A piss-poor employer will threaten you when they are done cajoling or trying to pull the wool over your eyes:
Again, I reiterate – did they sign a contract with terms outlining not just who owned what for intellectual property you create during your term of work with them, but also non-disclosure/confidentiality and exclusive rights terms?
If your contract is blissfully devoid of these pages and pages of terms, or if (ha-ha!) your employer never bothered to sign a proper contract at all, then you can re-purpose, re-use and have ultimate authority over their use of that work.
Normally, if an employer neglects to think of such things, a simple re-negotiated agreement will work, saying for example, ‘write me a polite letter asking for non-proprietary content and I will send a response officially saying you have rights to it outlined as follows’. Or you can negotiate for a reasonable sum in addition for rights to use the content for x amount of time, or in perpetuity. The problem is that most jerk employers cannot bring themselves to admit they were ignorant of international law in this regard, and won’t take basic steps to address their own inadequacies in this regard. They will threaten you with legal action, they will bitch and moan and complain.
Ultimately, though, they are thieves and are trying to steal your intellectual property – and your right to continue to use it – for free. They can negotiate, or they can bitch… and what sort of employer does that make them if they choose the latter?
I would recommend that, should you be hassled by a jerk employer, you share the links to this page and to the pages below, outlining the differences between employee-created content and contractor-created content. Then go about your business.
If they do ever try to take you to court, you can respond and any legal aid volunteer can handle your case… and get legal costs as well as pain and suffering, damage to your company’s reputation and other punitive damages back.
(Again, the employer could have been decent and negotiated with you, they chose the path of… well, we will let Iggy explain it)
For more information, click the images below for great articles on how intellectual property law is defined: