Whether it be scribbling notes during a call, creating a graphic design or writing code for software, employees are creating intellectual property as a result of their job. The question is – who is the legal owner of that intellectual property?
What does the law say?
The default position under English law is that, if IP is created by an employee in the course employment, that IP will automatically be owned by the employer.
But what does “in the course of employment” really mean? The question to ask is this: would an employee reasonably be expected to do that work within the scope of their role?
By creating IP outside of work hours, or not on company property, that does not mean that the work in question would not fall into the “course of employment” requirement – there are several factors which contribute to the assumption that the IP should either be owned independently or by the employer.
Although the default position in law is that your employer will own the intellectual property you create during your course of employment, it is common to see clauses in your employment contract to mirror this for completeness. These types of clauses can sometimes include various obligations on you, for example, requiring you to give your employer an indemnity in the event that the IP you created doesn’t infringe on anybody else’s IP.
It is always highly recommended that you seek independent advice from a lawyer if you are unsure about clauses within your employment contract and how this affects your position in relation to intellectual property or otherwise.
I’m not an employee – what happens then?
The default position above does not apply to independent contractors, freelancers or individuals who are not employed.
Essentially the opposite applies – if you are a contractor or freelancer, you own IP that you create, even if it has been created for a third party who have paid for your services.
However, it is very common that businesses or individuals who engage contractors or freelancers to ask you to sign a contract which provides them with either a right to use the IP (a licence) or a transfer of ownership of the IP from you to them (an assignment) so that they have some or all control over the IP that you have created for them.
It’s always a better position to be in if you start off on your terms. If you are a contractor or freelancer, we would recommend that you have your own tailored set of terms and conditions that you can use with your clients and customers, so that you can manage everything across the board, including the IP that you create, under the same set of rules.
Get in touch
If you’re unsure whether you own your IP, or are looking for help with managing your IP or contracts, we’re here to help.
Our specialist solicitors at Briffa would be happy to offer you an initial free consultation to discuss how we can help you – simply contact us at email@example.com or on 020 7096 2779.
Written by Charlotte Owens – Solicitor
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