Balanced Employee IP Agreement (GitHub)

Balanced Employee IP Agreement (BEIPA)

BEIPA takes a balanced approach to assigning control of intellectual property (IP) created by an employee. The company gets exclusive control of IP created in the scope of an employee's job. The employee maintains exclusive control of IP created outside of their job and not related to the company's business. For IP created outside of an employee's job but related to the company's business, the employee maintains ownership and the company gets a non-exclusive and unlimited license. A company using BEIPA doesn't try to claim control of an employee's free time knowledge production, nor does it try to extend company control past the period of employment. Think of BEIPA as a commitment to employee autonomy and "work-life balance" – for the mind.

BEIPA was started as a reusable version of GitHub's employee IP agreement. Your company can use BEIPA too, and modify it as needed. If you'd like to help improve BEIPA for everyone, file an issue or make a pull request. While aiming to maintain the same "balanced" policy, we're keen to see feedback and suggestions for improving BEIPA and associated documentation. Please read our contributing guidelines and instructions.

Contributors to this project are not your lawyers and nothing in this repository is legal advice. See extended disclaimer below.

PDF, ODT, and DOCX copies of BEIPA are available for download.

FAQ

Why are employee IP agreements deemed necessary by employers?

In the United States, without an express agreement employers usually own works subject to copyright and have either ownership or a "shop right" to use inventions. With an express agreement, employers can obtain lower risk, more certainty, and more control over more IP in more situations – so it's easy to understand that robust IP agreements with employees (and contractors) are necessary. But it's possible for IP agreements to go too far...

How does BEIPA differ from other employee IP agreements?

Many employee IP agreements are very generous – to employers. To the extent allowable by law, employers get control over everything employees create while employed, 24/7, over work created before their employment, and sometimes even to gain control over what former employees create through "non-compete" terms. For an overview, see The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property.

BEIPA only claims exclusive control of what the employee creates during the period of employment and within the scope of their job, and non-exclusive freedom to use other creations relating to the company's business. There surely are many other approaches to relatively "balanced" employee IP policy. We encourage progressive companies and workers to share their agreements and lessons.

Why would an employer want to use BEIPA?

Your best employees are creative all of the time. BEIPA is good for recruitment, retention, and motivation – just like other practices and policies that authentically promote work-life balance and autonomy:

Employees who feel they need to look over their shoulder and hide personal projects are demotivated and set up for conflict.

You don't want to push out employees who feel they need to leave in order to work on a personal project.

You don't want to keep employees who are staying only because they're uncertain whether they have the rights needed to leave and work on a side project full time.

You want to encourage employee learning through creation and contributions to their communities (e.g., through open source), unhindered by need for employer permission.

Controlling employee side projects does not contribute to revenue or profit.

Having a non-exclusive license to employee IP related to the business maximizes benefit from employees' 24/7 creativity without the above downsides.

Why would an employee want to use BEIPA?

You don't want to have to look over your shoulder or hide, feel forced into staying or leaving, or discouraged from learning and contributing with free time projects, because the employer may be claiming to own your creations. You can know that your employer has made an authentic commitment to (at least) one aspect of work-life balance.

Why is BEIPA good for innovation? For society?

We know that societies and industries prosper when there is clear and fair (thus efficient and legitimate) property ownership and high labor autonomy and mobility. Employer control of all IP created by employees, even created during free time and not related to the business, sets up conflict, is perceived as unfair, and has employees and their ideas trapped. The effects of such control projected into the future (or not) has been well studied: the non-enforceability of non-compete agreements in California is one of the key advantages Silicon Valley has had over other regions, where employees have to wait years to strike out on their own.

Broad adoption of BEIPA should have similar beneficial effects for the communities and industries in which BEIPA is adopted.

What does BEIPA mean for open source?

BEIPA makes it clear that an employee can contribute to open source projects in their free time, without needing employer permission. But BEIPA is not specific to open source: An employee can also work on a closed source project in their spare time, and own it. BEIPA controls when an employer owns IP created during a period of employment, and when an employee does (and when the employer gets a non-exclusive and unlimited license). Open source adds another dimension, permission to anyone to use a knowledge product (e.g., software), subject to at most very limited conditions concerning provenance and sharing.

The IP owner of a knowledge product can decide to release the product as open source, whether the owner is an employer or employee, but doesn't have to. So BEIPA is mostly orthogonal to open source, but it will probably result in somewhat more open source developed by employees, simply because it removes a barrier or uncertainty around doing so.

A different employee IP agreement could stipulate that all IP created by the employee will be released as open source. That's not what BEIPA does, but if you know of such an agreement used in the wild, we'd love to hear about it (and about other more esoteric employer/employee balanced or generous to the public employee IP agreements, perhaps involving joint ownership).

What does BEIPA mean for patents?

BEIPA covers all forms of IP. A BEIPA covered employee can file a patent on work outside of the scope of their employment, and the employee would own it (if it is related to the employer's business, the employer automatically gets a non-exclusive license).

If employer and employee have particular patent objectives, they could be spelled out in a different or complementary IP agreement or other policy. One example of such an agreement is the Innovator's Patent Agreement from Twitter, a commitment from a company to its employees that the company will not use patents in offensive litigation without the permission of the inventors. Other pertinent policy choices include participation in anti-troll and non-aggression networks such as LOT and OIN, as well as contributing to open source projects.

In what jurisdictions is BEIPA applicable?

BEIPA was initially written for the United States. Version 2.0 also incorporates language necessary for use in Germany. Feedback on making it more useful in any jurisdiction is most welcome.

Even within the United States, limits on employer ability to claim all employee-created IP vary. In California the main difference made by BEIPA is that IP developed with company equipment or relating to the company's business, but in an employee's free time and which the employee is not involved in as an employee, is not owned by the company (but the company does get a non-exclusive and unlimited license if the IP relates to the company's business). This recognizes that from the employee perspective, segregating one's life activities based on ownership of devices at hand or relatedness to an employer's potentially vast range of business that an individual employee is not involved with as an employee imposes significant cognitive overhead and often doesn't happen in practice, whatever agreements state. It also recognizes from the employer's perspective that the employer has a real interest in being able to use any IP created during an employee's term of employment that is related to their business (note this expands and makes explicit the traditional "shop right" to use in lieu of demanding exclusive control). In some states with less employee-friendly law, BEIPA makes a bigger difference relative to the maximum employer control allowable by law often baked into employee IP agreements.

See Laws Concerning Employment Agreements and Intellectual Property Assignment for a collection of some laws regulating employee IP agreements. Some of these may be helpful information for or even required notifications to covered employees. Currently only U.S. state laws are included. Contributions to coverage of other jurisdictions are welcome.

Can I use BEIPA?

From an IP (copyright) perspective, the agreement is dedicated to the public domain (see license below), so the answer is yes. But please be reminded that it is offered without warranty (see disclaimer below).

How is BEIPA pronounced?

In English, think Beijing. Say Bay-pa.

In other languages, use the natural pronunciation based in the spelling.

What are some other relatively balanced approaches?

Employer

Defaults matter a lot, but clear and well-executed processes that allow employees to own personal projects or contribute to open source can also contribute significantly to balance. A Model IP/OSS Policy documents such processes in an employee IP agreement, based on practice at Rackspace. Google has publicly documented some of their processes for personal project ownership and releasing open source.

Employee

ContractPatch, information about negotiating employment agreements for open source developers.

Public Policy

Various U.S. states are considering non-compete reform, tracked at Fair Competition Law.

Acknowledgements

@hoolio, @jessephus, and @talniv, with feedback from GitHub employees and external counsel, created GitHub's employee IP agreement, which BEIPA makes reusable.

Disclaimer

GitHub, Inc. is not a law firm and does not offer legal advice. GitHub, Inc. and contributors to BEIPA offer no warranty of any kind and disclaim all forms of liability for BEIPA. Consult with your own attorney before using BEIPA.

License

Dedicated to the public domain under CC0-1.0 by GitHub, Inc. and contributors.

Note that CC0-1.0 does not grant any trademark permissions.

Norms

If you adapt BEIPA's text for your company's use other than by replacing bracketed [] fields, please change its name or state that you've changed the agreement so its no longer BEIPA. If you wish to attribute BEIPA, a link to its repository would be nice. If you'd like to tell us about how you've used BEIPA, or give us feedback, please do.