1

I work for a large hardware manufacturer in Europe. I work on the software development required for products. Since it is a hardware manufacturer I work for, which does software required to sell their hardware, but is not known for producing software, I have to teach lots of software skills to myself, working on weekends and evenings. The skills that I want to pick up are generic -- e.g., software design patterns, LLVM, Algorithms, etc., with an intent to:

  1. build up my public portfolio

  2. speed up development while I am at work.

Without the extra time I put over evenings and weekends, I do not think that I can call myself a competitive software developer. I would like to stay competitive to keep my professional options open as long as I work.

I asked my company to acknowledge that I work in the evenings and weekends using my own time and resources, and sent a link to my public respositories. As expected, the company came back claiming ownership of my work, or as an alternative, asking me to commit in the name of the company.

I am reluctant to commit in the name of the company since it will take away the freedom to experiment (company guidelines, etc), and also do not want to stick the company name for free. Second, I am unwilling to pass the ownership of my weekend work to the company (at any cost) since it is part of my public portfolio, and my creative expression.

I understand the legal standpoint, but how does it work for people who are constantly upskilling themselves via courses (e.g., Udemy, Udacity, Coursera, which require software development that ends up in some public repository)? Relying on my company alone to keep ahead of the curve in terms of skills is unrealistic (it is not a software company, but a hardware company that also does software). Additionally, lot of employers expect to see code samples before interview, so my public repository serves that additional purpose.

What are my options?

Clarifications, based on discussions so far:

  1. I am not asking the company to reimburse me for my off-time work, nor do I intend to ask for any compensation.
  2. I told my company about my evening and weekend "work" for (a) transparency (b) Avoid that in future all my work could be claimed as an IP of the company under a (seemingly) over-arching legal provision "we (the company) owes IP for anything even tangentially related to our business"; or in other words "Any code you write belongs to us because you're our employee, period?" (thanks, @BSMP).
  3. No company resources (e.g., licenses, hardware, time) were used. My public projects rely on open-source tools only.
  4. The work I do is purely for developing my skills as a software developer with (obviously) an intent to improve the productivity and quality in office (or, anywhere I professionally work).
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    "I asked my company to acknowledge that I work in the evenings and weekends using my own time and resources" Whatever for? What were you trying to do by that? And why would your employer possibly want to "own" what I presume is a student portfolio unrelated to their industry or activities? – Lilienthal May 22 at 7:54
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    Did you get paid for the weekend time? – nicola May 22 at 7:58
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    Were you trying to get the company to pay you for the time you're spending learning new skills? Was this a, "OK, we'll pay you for that but then we own what you write" or a, "Any code you write belongs to us because you're our employee, period"? Also, what does your contract say about code written on your own time? (I'm assuming you have one because you tagged Europe.) – BSMP May 22 at 7:58
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    in which country are you exactly? this could affect the laws applying to you (I know some stuff about the situation in Germany, but wouldnt dare speak for another another country) – Benjamin May 22 at 8:00
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    Why did you tell them that you were working in the weekends? What you do outside work is not their business and you shouldn't mention your activities with them. – nicola May 22 at 8:00
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You shouldn't have asked.

If the work you do in your spare time is clearly tied to the stuff your employer does, they may have some rights to it. By asking them to say the work you do is yours, you worsen the situation for them: Checking that really nothing you coded so far is related is a lot of work, and usually requires specialised knowledge. If it now happens to be superrelated to their main product, they have no recourse. So of course, they are reluctant to give you a blanket statement.

On the other hand, they now want to worsen the situation for you.

What do to do now?

Try to go back to space 0: Assure them it is not related, and if it happens to be otherwise, you will inform them. They don't give you a blanket statement but also waive the requirement of you giving them all rights. Tell them you were unsure about the legal situation, but now learned more. It is probably wise to spend some hours reading up the legal situation to be in the clear.

I am a software developer, and I never asked. Also, I never published stuff that was related to my work, so there were 0 problems. All programmers I know handle it this way.

Article by a German lawyer: https://www.zeit.de/karriere/beruf/2011-06/arbeitsrecht-urheberrecht

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  • Its fairly common for employers to have a claim on related work and I believe that Germany is no exception -I suspect that there is some lack of knowledge on HR's part as well here. – Neuromancer May 22 at 20:36
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    yes, there is a claim to related stuff. But here it gets nebulous: a common interpretation is that if you did related stuff and the employer wants it, they have to compensate you fairly. Because it was on your own time, not theirs. But what is fair compensation? And how soon does is it related? That's another reason why the company might be reluctant to give blank statements... – Benjamin May 22 at 22:02
  • I agree with this answer, although I'm preferring transparency and would also inform beforehand. If they don't understand copyright, it's their problem, not mine. They have to proof their claim, which in most non-academical jobs is very difficult, because it's incrementally build on public frameworks. – Chris May 24 at 11:29
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What are my options?

The legal option

ยง17 UrhG says that copyright transfer to the employer only happens if the work was created "for the exclusive purpose of fulfilling obligations resulting from the employment or service relationship". So you might have a legal argument to retain intellectual ownership because nobody told you to make this or paid you for it. But on the other hand you might have undermined that legal argument a bit by "asking your company to acknowledge that you work in the evenings and weekends". You can not have your cake and eat it too. Either you do work on weekends or you don't.

Or perhaps you didn't? You are not a lawyer, I am not a lawyer, I don't know what your work contract says or who really said and did what. So before you throw the law book at people, consult a lawyer specialized in employment and/or copyright law. First time consultations are usually free.

The backpedaling option

I am not sure what exactly you hoped to gain from asking your employer

to acknowledge that I work in the evenings and weekends using my own time and resources

But if there was any implication that this "acknowledgement" included anything except a pat on the back, then you might want to explicitly retract that demand and see if that makes people happy. Keep in mind that there might be a miscommunication. They might have assumed that you implied more by that than you actually meant. Find out what their real concerns are. Good communication is important in situations like this.

The option of least resistance

Fulfill their demands by putting both your name and the company name on your public repositories. This does not diminish your ability to use it as a portfolio when applying to other companies. Other companies don't care about who has the legal rights to the work you created. They only care about what you can accomplish, and the existence of that repository is proof of that.

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  • I only wanted to avoid a situation wherein the company suddenly decides that everything I put in my public repository belongs to the company, or be accused of stealing IP. The work I do dabbles with CMake, LLVM, C++, Typescript, Algorithms, ... These skills are expected of me in my position -- so the off-time practice. If one wanted to stretch the limits, anything that related to CMake (for instance) can be considered IP of the company since the company uses CMake as part of the build system. I am worried about these "blanket" claims. – O oLo O May 22 at 12:36
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    @OoLoO So you did this solely to avoid the situation you now found yourself in? – Philipp May 22 at 12:38
  • That's how I interpreted the OP. @OoLoO, the "acknowledge that I work using my own time" means that you specifically wanted them to say "Yup, that's fine, this isn't related to what you do for us so go ahead?". – Lilienthal May 22 at 19:51
  • @Philipp: "So you did this solely to avoid the situation you now found yourself in?" Yes. To avoid complications into the future as I build and improve my portfolio. – O oLo O May 23 at 9:10
  • @Lilienthal "Yup, that's fine, this isn't related to what you do for us so go ahead?" : Absolutely. – O oLo O May 23 at 9:10
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Too late for OP, but hopefully not for others.

Here's what probably happened: The company has an owner who thinks he owns the employees and everything they do. That's why your contract is the way it is. HR knows that the company wouldn't have a chance in a court in Germany, but that's not something they can tell the owner.

So what does HR do? They ignore the matter as much as they can. They don't ask anyone if they created anything at home. They don't even ask when you leave. They know it will only create trouble for everyone.

And now you come and tell them. HR can't ignore this, and they can't ignore their boss. There's a saying - don't wake up sleeping dogs. And that's exactly what you have done. Sorry, you made a mistake.

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  • Coolest summary yet. – O oLo O May 23 at 20:15
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There is nothing wrong with asking for them to provide a waiver. It's better to have a bit of conflict now, rather than down the track when you've invested heaps of time and effort and legal proceedings start.

And if I was them, I certainly would not give you a broad spectrum waiver to do whatever you wanted and give up all right to it.

The specific legal issues are going to be highly dependent on your location, which you have not specified.

Without knowing your location within Europe, it's somewhat likely that work you do on the weekend that is related to the company, belongs to the company.

Given that your aim is to build a portfolio and learn, the simple solution is to pick a context for this work that is not related to the work you do for the company.

Regarding the context, the company does not get to decide how related or unrelated something is. That is something that a judge would do, if your company decided to take you to court. Obviously going to court is not a good outcome for either party.

If the thing you are most concerned about is not the legal aspects, but instead friction as a result of this, you should consider simply doing anything you want to do under a different identity. When it comes to proving authorship of the work, there are ways of proving this down the track without having to list your name on the repositories.

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  • as per a comment, he is in Germany – Benjamin May 22 at 10:37
  • I'll add it as a tag. Comments don't last. – Gregory Currie May 22 at 10:41
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You're asking the company to be your sponsor for your own works. They have every legal rights to ask something back from you. There's no such thing as free sponsorship. You were asking for free lunch.

Do it yourself under your own name on your own website/Github. Problem all solved.

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    This answer seems to be based on a false premise. Where do you read that OP asked the company to sponsor him? I don't see that in the Q. – sleske May 22 at 9:19
  • @StephanBranczyk Please try little careful... "acknowledge" is in the question. It's another way of sponsorship. – PhD May 22 at 9:46
  • @sleske Please try little careful... "acknowledge" is in the question. It's another way of sponsorship. – PhD May 22 at 9:46
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    @PhD: Ah, okay, now I understand why you consider this "sponsorship". Maybe you could edit your answer to explain this? – sleske May 22 at 10:03
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    @PhD: "Acknowledge" just means "Look, this is what I have done in the evenings, on my own time, using my own resources. I do not ask you (i.e., the company) to pay me for any of it, and you (i.e., the company) also does not have any rights (i.e., IP rights) over the content in my public repositories). – O oLo O May 22 at 12:32

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