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Ownership of work product

Active Member
Michael W Member Since: Mar 18, 2017
1 of 16

How do I ensure that I own the work product developed by freelancers - especially if they reside in a different country.

Community Guru
Preston H Member Since: Nov 24, 2014
BEST ANSWER
2 of 16

If you pay for it, you own it.

 

That is the default status according to Upwork's ToS and standard contracts, which are in place automatically when you hire freelancers.

 

It has nothing to do with where the freelancers live... in another country or down the street.

 

You may need to be more concerned about making sure you have posession and control of work product. That means you need a good project manager to ensure that all work product files are obtained, reviewed and stored. (If you are not working with a project manager, it means you'll need to do this yourself.)

Active Member
Michael W Member Since: Mar 18, 2017
3 of 16

Thank you so much for your helpful and prompt response.

Active Member
Bill F Member Since: Oct 19, 2018
4 of 16

Dear fellow Upwork User, interestingly, at some point between last summer (2017) and today (2018) Upwork may have changed its TOS language to no longer include what used to be section 8.6 Ownership of Work Product and Intellectual Property of the Upwork User Agreement. 

 

If this condition in the TOS has been deleted, i would consider that a material change to the user agreement for all upwork users.  I am in the process of contacting Upwork to determine how it explicitly addresses intellectual property rights transfer upon payment. 

 

When i last examine the TOS last year, section 8.6 read "Upon Freelancer’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered."

Moderator
Valeria K Moderator Member Since: Mar 6, 2014
5 of 16

Hi Bill,

 

Yes, Upwork ToS was updated earlier this year and you can find the announcement hereSection 8 of the User Agreement used to list out the default terms between Clients and Freelancers if they didn’t make another arrangement. We broke these out as a new agreement named the Optional Service Contract Terms. You can still find all the terms regarding Intellectual Property rights there.

~ Valeria
Untitled
Active Member
Bill F Member Since: Oct 19, 2018
6 of 16

Not to be disrespectful but i asked this question to Upwork directly.  I am not interested in unoffical answers although i do appreciate you getting back to me.

 

I find your announcement of the TOS change to be wholly inadequate.  Why you did not require consent by users to the changes in TOS in order to continue using your platform is shocking. your changes to TOS are material.   
 
Your TOS states "if and to the extent that the Users who are party to a Service Contract have not agreed to different terms, then they agree to incorporate these Optional Terms."
 
what it means to "not agree to different terms" is ambiguous.  
 
i doubt there are ANY circumstances in which your "Optional Terms" would become effective given that freelancers and clients would never start a project without agreement on essential contract terms (offer, acceptance and consideration)
 
i would urge you to make all users aware of this significant change immediately.  
 
sincerely, bill
Community Guru
Preston H Member Since: Nov 24, 2014
7 of 16

re: "Not to be disrespectful but i asked this question to Upwork directly.  I am not interested in unoffical answers although i do appreciate you getting back to me."

 

Bill: Valeria is a senior moderator and one of Upwork's highest-ranking official representatives.

Active Member
Bill F Member Since: Oct 19, 2018
8 of 16

Hi Preston, thanks for the reply. if that's the case, then I would hope Valeria would present a title and make reference that she is speaking on behalf and with authorization from Upwork. I may have missed this.  i sent my original complaint directly to Upwork and somehow it was channeled to the community.  Sorry if my tone is terse. I think Upwork is an absolutely amazing economy-changing platform but i do believe that Upwork has made a grave mistake

 

Someone from Upwork (Brittany Sullivan) has emailed me a response and i am thankful for that.  Upwork seems to think that "the Terms of Service that contain provisions that apply to the contract between you and your freelancer are now located in Section 2.4"  Based on my reading of section 2.4 this is clearly NOT THE CASE.  Upwork is mistaken.  

 

This was my response to Brittany - 

"Hi Brittany, i don't believe that what you said is correct.  section 2.4 relates to the relationship between the users of upwork and upwork and not, as you said, the relationship between client and freelancer."
 
"Please express my dissatisfaction to you management.  without informing me of your changes, you've reduced the protections of the significant amount of intellectual output that i have commissioned and paid for" using the upwork platform.  
 
I think enough has been said.  Upwork's inconspicuous announcement of the changes they made to TOS has undermined client protections.  The way client protections were originally incorporated directly into the orignal TOS (in section 8.6) made them rock-solid.  now, they are incorporated into an "optional agreement" that, because of its stipulations, will likely not apply to most consumated contracts.  or at the very least it has been left ambiguous.  
 
i think upwork made a big mistake.  it opened the door to potential IP disputes -- probably only a hassle to Upwork's biggest clients.  sincerely, bill
 
Community Guru
Scott B Member Since: Nov 20, 2015
9 of 16

@Bill F wrote:

Not to be disrespectful but i asked this question to Upwork directly.  I am not interested in unoffical answers although i do appreciate you getting back to me.

 

I find your announcement of the TOS change to be wholly inadequate.  Why you did not require consent by users to the changes in TOS in order to continue using your platform is shocking. your changes to TOS are material.   
 
Your TOS states "if and to the extent that the Users who are party to a Service Contract have not agreed to different terms, then they agree to incorporate these Optional Terms."
 
what it means to "not agree to different terms" is ambiguous.  
 
i doubt there are ANY circumstances in which your "Optional Terms" would become effective given that freelancers and clients would never start a project without agreement on essential contract terms (offer, acceptance and consideration)
 
i would urge you to make all users aware of this significant change immediately.  
 
sincerely, bill
 
------
 
I would interpret it as the client and freelancer having terms within a separate legal document that outlines ownership differently than the standard terms of UW. I see no reason why UW has to govern ownership rights. They have a default in place but a client and freelancer would be free to negotiate something different. Really UW's interests are related to payment, not ownership, non-disclosure, etc. 
 
That said and none of this can be answered in this forum. Bill you are right to seek a legal response from UW and otherwise from your own legal counsel to get a proper understanding. I don't know if you are a lawyer, but if not I would reserve coming to a conclusion about ToS change materiality without proper legal interpretation. 

 

Active Member
Gilbert F Member Since: Oct 20, 2018
10 of 16

I'm totally new to Upwork, the CEO/Founder of my company, and a lawyer.

 

Easy questions on this matter, for Valeria, whom I will take as speaking on behalf of Upwork:

 

1) Does the current ToS + Optional Service Contract ("OSC") Terms = the previous version of the ToS?

 

2) Is it easy (hopefully automatic) to have both the ToS and OSC excuted at the time I hire a Freelancer (which I was hoping to do so in the next few days)?

 

If UpWork isn't facilitating the ownership and protection of the work for which I paid, then, respectfully, this diminishes (if not outright eliminates altogether) the value of using this platform.  I hope that isn't the case because so many othe aspects of the platform I am finding useful and potentially additive to my business.

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