In March 2009, the Ontario Superior Court of Justice had occasion to consider the scope of the presumption under the Copyright Act of an employer's ownership of copyright in works created by an employee in the course of his employment.
The case of Corso v. NEBS Business Products Limited [(2009) 176 A.C.W.S. (3d)] involved a claim for wrongful dismissal by Mr. Corso, and a counterclaim by the employer NEBS Business Products Limited (NEBS), for a declaration that it was the owner of copyright in certain materials created by Mr. Corso, largely on his own time.
NEBS had dismissed Mr. Corso after it discovered that Mr. Corso was secretly developing a product called eVault, which would be a chequeless method of dealing with accounts payable. The Court found that this product was competitive with his employer's PAYweb business (which was a chequeless method of dealing with payroll), and that the eVault product had the potential to undermine his employer's larger cheque business. The Court found that it was part of Mr. Corso's job to think of new ideas to expand the functionality of the PAYweb software, and that the functionality of the eVault system had been under active consideration by NEBS.
The Court found just cause for termination of Mr. Corso's employment, given the fundamental breakdown in trust as a result of the employee's willingness to put his own self-interest ahead of his duty, in relation to a matter that went to the heart of his employment obligations.
The factual determinations of the Court in relation to the finding of just cause for dismissal were key to its findings of copyright ownership. Under section 13(3) of the Copyright Act, where a copyrightable work is made by an employee, and that work was made "in the course of his employment," then "the person by whom the author was employed shall, in the absence of an agreement to the contrary, be the first owner of the copyright. ."
Although it appears that Mr. Corso had argued that copyright in the eVault program remained with him, because it was a personal project, and completed after work hours, the Court noted that "it was part of Mr. Corso's duty to use his creative skills to generate concepts such as eVault for the benefit of his employer and it is immaterial that it was created largely on his own time." Accordingly, the Court confirmed that it was NEBS that was the ownership of all copyrights in the eVault program, as well as related development materials, screen shots and source code.