> "Talk to a lawyer" is the best answer to something like this
Agreed. That's probably the best advice for any non-trivial legal issue or question. I hope no one read my answer as contradicting that.
That said, is there _any_ example, in _any_ jurisdiction where a court has upheld an employer's right to IP that meets those three criteria (employee's own time, own equipment and unrelated to the employers business)? I would hate to be in position where I'd need to find out, but I'm curious if this has _ever_ been tested in court. It just seems like a ridiculously over-reaching claim.
In one discussion, I think with my own lawyer when reviewing a proposed employment contract, I was advised that it is best to be quite specific about what is covered with these IP clauses precisely because how enforceable they are can ultimately come down to the unpredictable opinion of a court where the people making the decision might not be technical experts.
It was a long time ago, so I may be slightly misremembering the exact details, but in a nutshell the example given was someone who did have to hand something over because a court decided that being a salaried programmer using a certain programming language at work meant something they programmed in that same language at home was related to their employment. The software itself was in a totally different field to what they did for work, so their assumption had been that it wouldn't be covered, but the court didn't see it that way. I'm in England and was talking to an English lawyer about English employment, so I assume that was also the location of the case mentioned, but I'm afraid I don't know anything more specific to provide a proper citation.
I was also warned that this is a bigger problem for employees of huge companies with many divisions, because in that case the employer could have interests in a wide variety of different fields that would be relevant for contractual purposes. Even though any given employee might have no knowledge that something they're doing out-of-hours could be affected, because it's nothing to do with what they do themselves and what happens in their own part of the business, it can still be relevant from the employer's point of view and so trigger the contractual transfer of IP rights.
> court has upheld an employer's right to IP that meets those three criteria (employee's own time, own equipment and unrelated to the employers business)
Yes. There are places where either by statute or by the employment contract, anything the employee creates belongs to the employer. The underlying concept is that the employer created an environment where the employee was able to learn and be inspired.
I know personally of a situation where a university exercised this right, although I don't know if they did it through statutes, common law, or an explicit agreement.
The example I know about wasn't a newsworthy thing, just something that happened to my ex's classmate. I think the sticking point was that the IP was in the field he was getting his degree in, even though it wasn't related to any of his research (or any of the other research at the school).
I tried to Google for some other examples, but (as usual) Google mangled my search into a completely unrelated topic.
> Does this also mean that if a programmer will write a song at weekend, his employer will have the copyright?
The example I knew about was something that could plausibly have been done using the university's resources, but it wasn't.
While it does seem crazy, a common legal practice is to create incredibly rigid, selfish policies and then decide later if it's worth enforcing them. I was often told as an undergrad that anything I did was partly owned by my school, but that I shouldn't worry about it because they'd never pursue me.
> something that could plausibly have been done using the university's resources
Yeah, but parent here states that even if an employee wasn't using any employer's resources, the rights are still belong to the latter. Which is a whole other level of insanity.
On an unrelated note, university owning any work of a student, regardless on how it was done (unless it was explicitly contracted with the uni), is also pretty grim, but this is probably US thing.
Agreed. That's probably the best advice for any non-trivial legal issue or question. I hope no one read my answer as contradicting that.
That said, is there _any_ example, in _any_ jurisdiction where a court has upheld an employer's right to IP that meets those three criteria (employee's own time, own equipment and unrelated to the employers business)? I would hate to be in position where I'd need to find out, but I'm curious if this has _ever_ been tested in court. It just seems like a ridiculously over-reaching claim.