Does Your Employer Own the Code You Write on Weekends?

What does Indian copyright law say by default?

Section 17 of the Copyright Act, 1957 starts from a simple rule: the author of a work is its first owner. It then sets out exceptions. Clause (c) provides that where a work is made in the course of the author's employment under a contract of service, the employer is the first owner of the copyright, in the absence of any agreement to the contrary.

Software is protected as a literary work, because the definition of literary work in Section 2(o) includes computer programmes. So the same rule that applies to a report or a design applies to your code.

The operative words are "in the course of the author's employment". That is a narrower idea than everything you create during the period you happen to be employed. Work done in your role, using your employer's time and resources, sits squarely inside it. A project unrelated to your role, built on your own equipment and your own time, is a different question, and the contract rather than the statute usually decides it.

Is weekend code made "in the course of employment"?

There is no single test, and the answer depends on facts. The questions that usually matter are whether the work is the kind of thing you are employed to do, whether your employer directed or expected it, whether you used company laptops, cloud accounts, code or confidential information, and how closely it overlaps with the employer's business.

Timing alone does not decide it. A feature for your employer's product written at home on a Sunday is still probably your job's work. A budgeting app written during a lunch break on your own phone, with no connection to your employer's business, probably is not. The table below sets out common situations and how the default usually reads.

What do employment contracts add on top?

This is why the IP clause matters. Typical Indian employment agreements go well beyond Section 17(c), assigning to the employer all intellectual property "conceived, created or reduced to practice during the term of employment, whether or not during working hours". Some contain no requirement that the work relate to the business, and a few try to reach work created before joining or for a period after leaving.

A clause of that width is not the statutory position; it is a contractual expansion of it. Whether a particular expansion is enforceable depends on its wording and the facts. A clause that tries to capture work created after you leave also raises questions under Section 27 of the Indian Contract Act, 1872, which makes agreements in restraint of a lawful trade or profession void, and courts have generally been reluctant to enforce post-employment restraints.

Confidentiality clauses work alongside the IP clause. Even where you clearly own a side project, using your employer's source code, customer lists, pricing data or unreleased product plans to build it is a separate breach, and it is the easiest way to turn a strong ownership position into a weak one. Keep a clear line between what you know generally as a skilled engineer, which you are free to use, and what you learned from confidential company material, which you are not.

Inventions are a separate track. The Patents Act, 1970 has no equivalent of Section 17(c), so who owns an employee's patentable invention is largely a question of contract and facts. That is one more reason the wording of the clause matters more than people expect.

The formalities most clauses ignore

Section 19 of the Copyright Act sets requirements for assignment. Under Section 19(1) an assignment must be in writing and signed by the assignor or a duly authorised agent. Under Section 19(2) it must identify the work and specify the rights assigned, the duration and the territorial extent. Under Section 19(5), where the period is not stated, the assignment is deemed to be for five years, and under Section 19(6), where the territory is not stated, it is presumed to extend to India.

Section 18(1) adds that an assignment of copyright in a future work takes effect only when the work comes into existence. That is how a clause covering "all future works" operates: it can work, but it is an assignment, and it carries the Section 19 requirements with it.

These defaults cut in interesting directions. A sweeping assignment clause that names no term is not necessarily the permanent transfer the drafting implies. Separately, Section 57 provides that the author's special rights, to claim authorship and to object to distortion or mutilation prejudicial to honour or reputation, subsist independently of copyright and even after it has been assigned.

Wording to propose before you sign

Most employers will not delete the IP clause, and you should not ask them to. What you can reasonably ask for is a clause that ties the assignment to the employer's business and excludes genuinely independent work. A version that many employers accept reads along these lines:

"The Company's rights under this clause extend only to Work Product that (a) results from work performed by the Employee for the Company, (b) relates to the actual or demonstrably anticipated business of the Company, or (c) is developed using the Company's equipment, facilities, confidential information or working time. Works listed in Annexure A, and works created outside working hours without use of Company resources and unrelated to the Company's business, remain the property of the Employee."

Annexure A should list your existing projects by name, with a one-line description and a link to the repository if public. If you contribute to open source, ask for a sentence permitting contributions to named projects under their existing licences, subject to not disclosing confidential information.

Practical questions for your own contract

• Does the IP clause require the work to relate to the employer's business, or does it claim everything created during the term?
• Does it reach work created outside working hours and on your own equipment?
• Does it purport to cover work created before you joined, or for a period after you leave?
• Does it specify rights, duration and territory as Section 19(2) requires, or rely on a one-line statement of ownership?
• Is there a carve-out mechanism, such as disclosing existing projects in an annexure at the point of joining?
• Does it address open source contributions, which are common and often overlooked?
• Is there a separate moonlighting, dual employment or conflict of interest clause that restricts side work even where ownership is clear?

If you already have a side project, what should you do?

The cleanest approach is disclosure at the start. Listing existing projects in an annexure and agreeing they are excluded converts an ambiguity into a written position at the moment when both sides are being reasonable. Employers routinely accept this for genuine pre-existing work.

If you are already employed and building something significant, take these steps in order. Read the IP, confidentiality and moonlighting clauses together. Stop using any company device, account or code for the project. Keep the project in a personal repository so the commit history shows dates and authorship. Do not use anything you learned from confidential company material. Then decide whether to seek a written no-objection or release from your employer.

Consider an example. Priya, a backend engineer at a Bengaluru fintech, builds an expense-splitting app on weekends. An angel offers ₹50 lakh for 10% of her new company. The angel's counsel asks for her employment contract, finds a clause claiming all works created during employment, and makes a written release from her employer a condition of closing. Had she listed the project in an annexure when she joined, or asked for a release before approaching investors, that condition would have been a formality rather than a negotiation.

Where the project might become a company, the position depends on your specific clause, what you built and what resources you used. That is a fact-specific question with real commercial stakes, and it is worth an advocate rather than an internet answer.