Inspired by Open Source: Balanced Employee Intellectual Property Agreement 2.0

GitHub is on a mission to accelerate human progress through developer collaboration. We do that by empowering our own employees to use their creativity to learn, play, and build great things. We believe that employers should encourage this creativity by providing certainty to employees about what they own and what they do not when they use their skills outside of work. That’s why GitHub developed, adopted, and in 2017 open sourced its Balanced Employee Intellectual Property Agreement (BEIPA), which recognizes that personal creativity doesn’t follow work hours and it is not limited to particular devices, giving employees more freedom in their contributions to open source and side projects.

According to a recent Linux Foundation/Harvard study, 45% of developers understand that their employer’s IP policy allows them to contribute to open source projects in their free time without asking their employer’s permission, up from 35% 10 years ago. Another 30% understand that they can contribute to open source projects in their free time, but need to ask employer permission, up from 25% 10 years ago. GitHub’s 2017 Open Source Survey had similar findings. While this is a positive trend, we’re always looking for ways to give developers more clarity and more freedom to be creative both in their jobs and in their free time.

That is why we are now publishing an updated and revised BEIPA 2.0, inspired by community feedback–and by open source. Open source licenses make IP non-exclusive, allowing anyone to use licensed code. Under many employee IP agreements, including BEIPA 1.0, either the employer or the employee is the exclusive owner of IP created by the employee (BEIPA 1.0 is more favorable to the employee than usual). What if in situations where freedom to operate is more critical than exclusivity, an employee IP agreement could take a small hint from open source licenses, and make certain IP non-exclusive between the employer and employee? That’s exactly what BEIPA 2.0 does with IP created outside of an employee’s scope of work, but related to an employer’s business: the employee owns such IP, while the employer gets an unlimited license to use it–aligning incentives to be creative and increasing certainty for both parties.

We also made some other changes to make BEIPA 2.0 more robust and focused solely on IP: 

• We removed confidentiality obligations for employees to the company. These are typically addressed by corporate policies, and don’t also need to be in an IP agreement. 
• We added a clause where employees agree not to share any information subject to someone else’s NDA or IP rights. This helps protect both the employee and the company by ensuring that the employee doesn’t run afoul of prior agreements and that the company has freedom to operate.
• We removed the annex specifically detailing certain U.S. state laws to genericize the agreement for broader use. The annex is now in another document for reference, but should not be considered the last word or legal advice for employees or companies. 
• We added a “survivorship” clause, so that if any terms are found invalid by a court, the others remain in effect. This helps ensure the interests of employees and companies are respected.
• We made some additions to make BEIPA 2.0 easier to adapt to use in non-U.S. jurisdictions, starting with Germany.
• We streamlined and removed some unnecessary legalese.

We are excited to share BEIPA 2.0 with the developer community. We are confident that these changes are improvements that balance employee and company interests. As always, the agreement is open source, and we welcome comments and pull requests. In particular, if our previous agreement helped you in your work, please get in touch! And if you like the sound of our approach, we’re always hiring!

Written by

Mike Linksvayer

@mlinksva

Head of Developer Policy