Legal Question in Technology Law in Colorado

Public Domain Software

My company is currently working under contract to a branch of state government to perform a specific service for them. We are NOT contracted to develop software. However, if software is created for the purpose of enhancing the performance of that contract and funds paid to my company for the performance of that contract are used to develop the software, does the software become publice domain? The contract states that any software developed under the contract becomes the property of the state based on the fact that funds received by my company for performance of the contract were used to pay programmers to Develop the software. Do these contract funds qualify as public funds? Can the state copyright the software even though they are not the authors and had nothing to do with the development of the system. Does the software developed under this contract qualify as intellectual property owned by my company?


Asked on 9/03/99, 4:28 pm

1 Answer from Attorneys
Lawrence Graves Coolidge & Graves PLLC

Re: Public Domain Software

Lots of issues here. Let me try to answer your questions in a different order than asked.

1. Most computer software that is originally coded by a programmer qualifies for copyright protection. Very few programs qualify for patent protection as well. Software is in the "public domain" only if it fails to qualify for copyright protection because of failure to satisfy the statutory criteria for copyright protection.

2. As your company would have the status of an independent contractor, there is a possibility that the contract constitutes an agreement for "works made for hire." This concept is carefully defined in the Copyright Act, and many contracts fail to satisfy the statutory criteria.

3. Any funds paid to you by the state constitute "public funds." Not a significant issue.

4. You may find that your company owns the copyright jointly with the state; this could be the case under a number of possible factual scenarii.

5. If the contract did not require that you develop software, is anyone even aware that you did?

You need to have an attorney examine the contract to evaluate who owns the copyright; really impossible to do without the specific language.

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Answered on 9/08/99, 2:54 pm


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