Intellectual Property

Time to Talk Thumb Drives

by Derrick Koenig

Use of Past Engineering Designs as Starting Point for Future Capital Projects

In recent months, I have had many discussions with fellow professionals regarding the use of past designs as the basis or starting point for future capital projects. As a result, I feel compelled to initiate an open conversation on the topic with fellow professionals and the industries that we serve.
Throughout my career as an employee of engineering firms I’ve signed many employment agreements. Similarly, when working as an independent contractor I signed many professional service agreements.  In both cases, I was always required to assign ownership and (intellectual property) rights of my work to the engineering firm for whom I was working.

Engineering Service Firms Assign Ownership and Rights to the Paying Customer

In a similar fashion, while building and operating my own engineering firm I entered into many contractual service agreements with our Clients (who were primarily oil / gas producers). I quickly learned that it is standard practice for engineering service firms to assign ownership and rights to the ultimate paying customer, i.e. in our case the oil / gas producer for whom we were providing services. This practice always made complete sense to me as these customers were paying the bill so why shouldn’t they fully own the final product.
Thus, the typical flow of ownership of drawings, specifications, and other documents as well as copyright in industry is as follows:
Employee -> Engineering Firm -> Customer
Independent Contractor -> Engineering Firm -> Customer
Assuming that this flow of ownership applies to you and your work, as an engineer you may ask if you are permitted to keep copies of your work.  APEGA provides excellent guidance to this question in their publication Practice Standard for Authenticating Professional Documents:
“Employee professionals might ask if they can keep copies of the documents that they prepared or authenticated. Employers may choose to allow that, but they are not obligated or compelled to provide copies, or to allow employees to take copies, since the documents are the property of the employer not the employee.”

Consent of Owner to Use Completed Project as Basis for New Project

So, we have established that simply put, the work done by engineers when working as either an employee or as independent contractors is typically ultimately owned by the paying customer. Furthermore, engineers are only permitted to retain copies of their work upon requesting and receiving approval from their employer.
Another nugget of useful information provided by APEGA in the same standard is that professional members must not use someone else’s document from a completed project as the basis for a new project without the consent of the owner. In fact, APEGA uses the word “author” here instead of “owner” but then acknowledges that authors can transfer ownership of copyright to others who would then of course become the owner (and this is usually the case).
It is important that we, as professional members, remember that we are required to comply with the Code of Ethics contained in the Engineering and Geoscience Professions General Regulation, AR 150/99. In addition to conducting ourselves with integrity, honesty, fairness and objectivity we are also required to comply with applicable statutes, regulations and bylaws. Of course, it would be nice for us to carry forward copies of all our work from years past.  However, we must acknowledge that we often don’t actually own that work and therefore need to reflect upon the question, “what is on that thumb drive, who owns the contents and what am I permitted or not permitted to do with the same?”

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