As germane as the open source movement has become to IT, there may be niggling issues when it comes to companies, intellectual properties and employment contracts.
Most notably, is tinkering with open source – be it certain Unix configurations, Apache Web servers, Linux or BSD systems – a violation of an employee’s contract?
Most organizations have some sort of employment contract in place that protects intellectual properties and allows them to claim ownership of an employee’s work. But this may be at odds with the spirit of open source which condones freely sharing source code, enabling participants to expand on, revise and make available any code enhancements.
Alan Gahtan, a Toronto-based lawyer who specializes in IT and intellectual properties, said most organizations don’t lose sleep over the issue. But when it comes to open source and intellectual properties, Gahtan said organizations and employees need to distinguish between development codes and ideas.
“Ideas are protected under patent; code is generally protected under a combination of confidentiality, trade secrets and copyright,” Gahtan said.
For instance, when employees create Linux enhancements, it shouldn’t really affect a company’s business. But Gahtan said employees should at least notify their employer before going ahead.
At the University of Toronto, researchers working with open source are permitted to do so under certain conditions, according to Monique McNaughton, the school’s intellectual properties and contract officer.
“With software, (users) are free to decide if they want to put it in the public domain or not…It’s a decision that they make,” McNaughton said.
Researchers, she added, usually make the code available under a proviso that once it goes into the public domain it is restricted to public use.
Bob Fabian, an independent Toronto-based IT consultant, noted that both employers and employees need to first agree on what constitutes open source.
In most cases, Fabian said, if employees wish to work with Linux, creating proprietary extensions – that is, giving credit to the company for releasing any enhancements – is permitted. But users may have to clear it with their employer that they in fact have rights to make that work publicly available.
“If the open-source allows proprietary extensions, I would not see any necessary need to change an employment contract,” Fabian said.
Users should also note that there are oodles of open-source material out there and not all of it is of quality or accompanied by extensive support. Some employers may not appreciate their employees dabbling in open source. But even then, Fabian said it’s more likely the fact they’re tinkering with the code rather than the prospect of legal ramifications that concerns them.
That said, employers aren’t exactly rushing to implement some sort of overarching open-source policy in the workplace. “I don’t know of any standard commercial enterprises that have decided that their people will or should participate in open-source development,” Fabian said.
