Just Imagine
You are an incredible, sought-after software developer who is passionate about human rights and the environment. You are about to be hired by Snapface to work on a number of projects including a facial recognition software program. However, you know that this groundbreaking facial recognition software, once complete, could be easily adapted to be used by drones to target and kill people in Yemen. This is deeply concerning to you. Before Snapface hires you, they want you to sign their standard employment contract, which certainly has a boilerplate clause labeled “Assignment of Intellectual Property Rights,” “Assignment of Invention,” or something along those lines, which transfers any right, title, or interest bestowed upon you for your work for the company by patent, copyright, or trademark law to your employer. At this point, you would like to be able to put a clause in your contract that essentially states that Snapface can have all the rights to the IP you create for them on the condition that your IP is not used by the military to kill people.
This is where CAL IP Assignment Clauses comes in. CAL IP Assignment Clauses are designed to be negotiated as a supplement to the company’s existing IP assignment clause. The effect is to expressly condition the assignment of your rights to Snapface on the company’s use of your IP in a way that is consistent with human rights norms and your values.
CAL Ethical IP Innovations
CAL creates outside-the-box legal mechanisms that give motivated individuals the ability to promote human rights norms by enforcing their own rights. One of the novel concepts that CAL has developed is to transform IP rights into tools of human rights enforcement. CAL developed +CAL Ethical IP Licensing (software license here and Creative Commons Plus license here) that IP-producers can put into their employment contracts, copyright licenses for original works of art, or open source software licenses. Click here to watch a silent movie on +CAL Ethical IP Licensing.
CAL is now adding another arrow in the quiver for socially/environmentally conscious IP-producers to assert control over their creations, inventions, designs, and other creative endeavors—CAL IP Assignment Clauses for employment contracts. Now, I know what you’re thinking…yes, it is real and it’s spectacular. I’ll explain why:
Amazing Features
There are some amazingly cool features that come along with CAL IP Assignment Clauses:
· Powerful, broad, and open-ended uses—you can condition assignment of your IP on the company’s use of the IP on any issues that are important to you (e.g. consistent with labor, employment, and environmental laws; consistent with the company’s own code of conduct; not to be used in conjunction with the detention of immigrants in ICE facilities, or in conjunction with the Department of Defense).
· More than just an unenforceable promise. CAL IP Assignment Clauses are a built-in enforcement mechanism. The company will have a contractual obligation to ensure that the IP you create is not used to commit human rights abuses.
· You can empower victims of human rights abuses. Victims of human rights abuses will have remedy as a third party beneficiary of your contract and will have standing and jurisdiction to sue in U.S. court based on the breach of your contract.
· New and existing employees and independent contractors can use it. The samples are designed to be easy to use by both employees and independent contractors. Although existing employees can’t change rights they have already assigned away, it may be possible for existing employees to renegotiate the terms of their current employment contract to apply to future inventions.
· You can improve supply chains. The clause can create a contract obligation for companies to monitor and remedy abuses in their network of suppliers, manufacturers, producers, transporters, distributors, and retailers of the product.
Getting Real
Since this is an experimental concept, there are some potential issues of which you should be aware. The obvious sticking point with CAL IP Assignment Clauses is that companies and their attorneys (even if they are good people who are against human rights abuses, child labor, and destroying the environment) will be very reluctant to limit their ownership of your IP. Nevertheless, there are important arguments for and benefits to companies to agree to CAL IP Assignment Clause, such as:
· Showing the company understands and is serious about protecting universal standards of human rights and environmental protections.
· Motivating employees and encouraging company loyalty by aligning with the goals, priorities, and values of workers.
· Increasing awareness of human rights issues within the company’s own supply chains.
· Avoiding situations of employee protest, resignation, and bad press (like what occurred at Google over Project Maven).
Each IP-producer’s situation will be different and the more leverage and bargaining power you have, the easier it will be to negotiate this type of clause into your contract. Sometimes it may feel like your employer or hiring company has much more bargaining power than you or that negotiating employment contracts and agreements can feel awkward or uncomfortable. Nevertheless, many employers and hiring companies are more flexible, open to new ideas, and sensitive to the concerns of their employees and independent contractors than you might expect. You never really know unless you are open with them about your concerns.
The law concerning IP assignment to employers and hiring companies varies state-by-state and is different for employees and independent contractors. Enlisting the help of an experienced attorney can also help to ensure that CAL IP Assignment Clauses and their terms and definitions are consistent with the other parts of your contract and will be enforceable in your state. While CAL cannot draft custom contracts, we are eager to learn how individuals around the world will use this idea to advocate for human rights and the environment in their own contracts. Let us know how you used these samples, issues you encountered, and how you resolved those issues.
Brad Goldstein is a labor and employment attorney, a CAL advisor, and the principal author of CAL’s IP Assignment Clauses.
