Intellectual Property Rights in the Work Place

It is all fair and well to think that, as an employer, you can tell your employees that everything and anything born from your offices during the course and scope of their employment belongs to you and your company … however, this might not always be the situation.

In essence, an employer will own the IP created by its employees, if the employee had a duty to create the IP and if it was created  during the course of the employees employment. However, IP created by an employee, outside the course of its employment will belong to the employee.

When stepping into the zone of intellectual property, it is vital that you understand how one creates intellectual property, who actually owns it, and what affects it, given that many employees work remotely nowadays as well.

Think about this – if your employee is tasked with coming up with a smart marketing package, where you are giving them the freedom to be innovative … who owns that piece of intellectual property?  A small aspect like this can open you and your company up to many dilemmas and abuse.

What are the common pieces of intellectual property?

Copyrights

Designs

Trade Marks

Confidential Information and Data

Trade Secrets

Know-how

Copyrights

When something is created through a computer program, a musical layout, a literary piece of copy or any form of artistic creation, it is referred to as a copyright.  Determining who owns these copyrights is the crucial part.  A simple but effective clause to include in your employment contract would be to state that all work created during the course and scope of employment belongs to the employer.

Designs

The same would apply to designs; however, be sure to differentiate between an employee or an independent contractor when creating the design.  In the case of an independent contractor who has been hired to design (note this can pertain to copy work as well), where money changes hands for that specific design, generally, until the money has been paid in full, the design belongs to the designer.  If the design it however created by your employee and it was created during the course and scope of the employees role, then the design will belong to the employer.

Trademarks

There can be both unregistered and registered trademarks.  Where a trademark is registered (you can see the little TM at the end of the design or word/s), then the owner of that trademark has full rights to it, and no one else does.  Where a trademark is unregistered, however, it’s evident by way of public knowledge that the trademark belongs to, e.g. ABC Company, then generally that will stand up in court.

Confidential Information and Data | Trade Secrets | Know-how

All of these relate to information that is not common knowledge to the general public and should be recorded in any legal agreement and contract so that it is clear that these cannot be used elsewhere, shared with anyone or divulged for fear of affecting the competitiveness of the organisation.

Be aware, in all instances, that when you have employees, there is always the risk that they may unwittingly let your confidential and private data out into the public, e.g. Laptop is stolen; weak password use; casual conversation is had, etc so make sure you include this in their employment contracts. Also make sure that their duties are clearly stipulated in their employment contracts and that you can show that they were directed/instructed to create the said IP.

Should you need more insight into protecting your intellectual property, do reach out to Labour Excel.

Silke R

Silke R

Senior Principle Partner

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