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IP Ownership Considerations in Multi-jurisdictional Software Development Agreements

As a result of the healthcare sector’s growing dependence on software, health IT companies are increasingly taking advantage of globalisation to engage contractors in low wage jurisdictions to develop their user-facing software applications. This can trigger unforeseen legal risks owing to the differing laws across jurisdictions related to the ownership and transfer of intellectual property (IP) rights.

At the most extreme end, best practices in some jurisdictions are unenforceable or even impermissible in others. In view of these issues, it is strongly recommended that a company looking to take advantage of cross-border contracting for critical development eorts should carefully consider the choice of law provisions in their agreements, and engage with local counsel to ensure proper vesting of intellectual property rights.

An inability to demonstrate proper ownership of such rights can be a substantial obstacle for later financings or in corporate activities. Depending on the jurisdictions involved, a contracting company may need to concern itself with at least three types of IP in the software that is developed on its behalf: copyrights, moral or author’s rights, and patents.

Click here to read the full article in our latest edition of International News.

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Street Art Street Smarts: Second Circuit Applies VARA, Affirms Moral Rights

The US Court of Appeals for the Second Circuit affirmed that plaintiffs-appellees’ temporary artwork had achieved appropriate stature to be protected by the rarely invoked Visual Artists Rights Act of 1990 (VARA), and that an award of statutory damages was warranted for defendants-appellants’ willful unlawful actions. Jonathan Cohen, et al. v. G&M Realty L.P., et al., Case Nos. 18-498, -538 (2nd Cir. Feb. 20, 2020) (Parker, J).

VARA established a structure of moral rights that gives the author of a work of visual art the right to “prevent any destruction of a work of recognized stature,” and provides that “any intentional or grossly negligent destruction of that work is a violation” of VARA. The act also contains specific language prohibiting the removal or destruction of artwork incorporated into a building absent certain written waivers or notice provisions, which are detailed in the statute.


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