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Protecting Your Intellectual Property

The AV industry is waking up to the broad issue of intellectual property (IP) ? the tangible and occasionally intangible products of designers of all stripes at AV systems solutions providers. Potentially encompassing everything from software to shop drawings to project design specifications, intellectual property is emerging as the essence of the ?product? that industry players are selling. As such, it's increasingly being recognized as something worthy of protection, or at least appreciated for its value and wisely managed.

Many integrators, however, remain focused on the profit margins derived from selling the hard assets and labor needed to deliver functional AV systems. Even as more integrators find themselves spending more time and money to develop software essential to the solutions they deliver, methods for properly valuing, managing, and protecting the IP that's created are elusive. Moreover, there's not even full agreement among integrators about whether it makes good business sense to try to protect software IP.

Source code key

At issue in the software IP debate is access to source code, the essential building block of all software programs. In applications, source code yields compiled machine code, which can't be readily interpreted or modified.

With the source code at hand, however, software programs can be modified, enhanced, and even duplicated. Thus, companies that invest significant amounts of time developing software and place a value on it often are highly protective of source code.

The software IP debate in the pro AV industry centers on who ultimately owns source code and whether and under what circumstances clients should be able to access it and use it as a building block for future system enhancements and add-ons. To a lesser degree, the issue of ownership and use by employees, contract programmers, and other integrators is part of the debate.

As the source code ownership issue comes to the fore, integrators are adopting different strategies. While some companies say code ownership is far down their list of concerns, others are adopting a range of solutions to protect their interests, from detailed licensing arrangements to selling the source code outright to establishing software “escrow” arrangements.

Whatever the approach, integrators and others who seek to protect source code have a strong legal leg on which to stand. Attorneys specializing in IP protection, like Dean Pelletier, who presented at one of InfoComm's recent IP roundtables, say authors of original software and the underlying source code have well-established copyright protection. The key for integrators, though, is establishing that fact up front by addressing ownership, usage, and transference issues during contract negotiations.

“The fundamental issue is appreciating what it is you have in the form of IP and taking steps to establish ownership rights or perfecting those rights, and identifying and accounting for any intellectual property in any contracts you enter into with contributors or clients,” says Pelletier, of McAndrews Held & Malloy, Chicago.

One of the keys to integrators retaining ownership rights, Pelletier says, is to ensure that common “work-for-hire” arrangements that imply any, and all work done for a client is the client's property are strictly avoided.

Unless, that is, you're an integrator who's hired a consultant or contract programmer to program a system for one of your projects. In that case, to protect your interests, you want to invoke the “work for hire” framework that transfers ownership of any work done for you to you. That way, the source code they develop on a project basis becomes your property, says Randy Notzen, an IP attorney and vice president of Webb Law Firm, Pittsburgh.

“When working with consultants or outside programmers it's important that you have an expressed assignment of copyright to you in your agreement with them,” says Notzen, who's served on IP panels at AV industry trade shows. “Avoid ad hoc, word-of-mouth agreements on this issue, because if this issue is overlooked and not addressed up front they'll be in a position later to come back and want royalties for the source code they wrote. That can be cured by dotting your ‘Is' and crossing your ‘Ts' at contract time. You need language in there that assigns the code to you.”

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