WA Questions about independant contractor agreement

[cyphix]

Hey guys - I have been sent a contract to sign for some contract work I will be doing for a company (web development) and whilst for the most part I understand it all, though I am unsure about a few of the clauses in it and was hoping I could get some help.

This bit:

10. Intellectual property

10.1 Ownership

The Contractor agrees that any and all rights and interests that the Contractor may have in any Intellectual Property produced, invented or conceived by the Contractor:

(a) in the provision of the Services;
(b) whether undertaken alone or jointly with another person or company
(c) after the date of this agreement

Automatically vests in the Company without any requirement for additional payment beyond normal payment for Services to the Contractor.

As I understand it this means that anything I develop for THEM (in the provision of the Services) remains their IP and this only applies AFTER the date of this agreement?

Then this bit particularly confuses me:

10.5 Attorney
The Contractor irrevocably appoint the Company or its nominee to be the Contractor’s attorney to do in the name of the Contractor or on its behalf any of the things that the Contractor is required to do under clause 10.3.

I may be wrong, but this sounds to me like that if a situation occurs between me and them where I would need an attorney to sue them then they (Company) or someone they nominate (or its nominee) would be my attorney!? Huh?

Here is 10.3:

10.3 Cooperation

The Contractor shall, at its expense, execute all documents and do all other things reasonably necessary to:

(a) enable the Company or its nominee to register any Intellectual Property anywhere in the world; and
(b) effect or perfect the transfer to the Company, or its nominee, of the Contractor’s rights and interests in any of the Intellectual Property that is the subject of clause 10.1.

I know I am probably wrong, it's just a little confusing.

Now just this last section, I don't quite understand this bit:

11. Moral Rights

11.1 Consents

The Contractor consent to all acts or omissions by the Company (whether occurring before or after the date of this agreement) that infringe any Moral Rights that the Contractor may have or become entitled to in any literary, dramatic, musical or artistic work or film created by the Contractor:

(a) in the provision of the Services; or
(b) at the Company’s direction or request.

Then this bit I assume just means this clause (11) remains indefinitely, even after contract termination:

11.2 Obligations continuing

The Contractor’s obligations under this clause continue after the termination of this agreement or at the conclusion of any particular engagement.

This is the last of (11) ad just including it for relevance as I'm not 100% sure about it either.

11.3 Definition

For the purposes of this agreement, “Moral Rights” has the meaning given to that term in part IX Copyright Act 1968 (Cth) and includes:

(a) the right of attribution;
(b) the right not to have authorship falsely attributed; and
(c) the right of integrity of authorship.

Thanks very much for any advice.

Brett

 

[Rob Legat - SBPL]

10.1 – Poorly drafted. Simply: any IP you create in providing the services belongs to them.

10.3 & 10.5 – 10.3 requires you to execute documents to assure the company of its IP rights. 10.5 means that you authorise them to execute the documents on your behalf (as your attorney), should you fail to do it yourself. Attorney doesn’t have the same meaning in Australia as it does in the USA.

11 – As well as ownership rights in IP there are also ‘moral rights’ which belong to the original creator under copyright and are relatively inalienable. This clause is you consenting to the company being able to do whatever they like the IP regardless of your continuing moral rights.

 

[cyphix]

10.1 – Poorly drafted. Simply: any IP you create in providing the services belongs to them.

10.3 & 10.5 – 10.3 requires you to execute documents to assure the company of its IP rights. 10.5 means that you authorise them to execute the documents on your behalf (as your attorney), should you fail to do it yourself. Attorney doesn’t have the same meaning in Australia as it does in the USA.

11 – As well as ownership rights in IP there are also ‘moral rights’ which belong to the original creator under copyright and are relatively inalienable. This clause is you consenting to the company being able to do whatever they like the IP regardless of your continuing moral rights.

Thank you for your answers Rob.

Since the work I will be doing will be for them and their clients passing over IP isn't really a huge bother; though I guess if I created something that could be universally useful to other projects and isn't specifically related to said project then it would be good if I could still be able to use that in other places outside of Company; but not a dealbreaker I guess.

I had a more of a look at "Moral Rights" via this article: Contractors Agreement: What Is A 'Moral Rights' Clause?

These stood out:

Your contract lawyer should be aware of the various ways by which infringement of moral rights can occur:

• Improper attribution or false attribution;
• Reproduction of work that lacks proper attribution;
• Treating a work in a derogatory manner; and
• Using a work that has been treated derogatorily for commercial purposes.

I don't need attribution and I'm not worried whatsoever about the other two.

Also, read this bit:

...your contract lawyer will not be able to draft the Contractors Agreement so that the moral rights become those of the business. This is because only individuals can own moral rights.

Thanks again.