Work created for a business – who owns the intellectual property rights?

by Redmans on September 10, 2012

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Employees are employed by (for-profit) businesses for a reason – so that the business can profit in some form from their labour. Sometimes an employee’s labour results in the creation of an original piece of work – for example if they create a new piece of software or draft a new policy paper. When an employee does create an original piece of work in the course of employment the business that they work for will naturally want to claim ownership of this work. But can they? This post will take a look at this question. In doing so we will look at the following:

  1. What are the basic rules of authorship and ownership of copyright?
  2. What about works created in the course of employment?
  3. How do I know who owns the copyright in the work created?

What are the basic rules of authorship and ownership of copyright?

The most basic rule in copyright is that the owner of the copyright in a work is the author of the work, and the author of the work is the person who creates the work. However, an exception (one exception, anyway) to this rule applies when a work is produced in the course of employment by an employee of a business.

What about works created in the course of employment?

If a work is produced by an employee in the course of their employment then it is generally the case that the employer is the owner of the copyright in the work that they’ve produced. For example, a designer (who is an employee) that produces a prototype boat in the course of employment doesn’t own the copyright to their work – their employer does. The only circumstance (normally) where this rule doesn’t apply is if there is an agreement that the employer will not own the copyright in the work that the employee authors. However, it is unusual for such an agreement to be reached in practice – employers almost always include a clause in the employee’s contract stipulating that they will own the copyright to any work that the employee authors. This may even be the case if the employee creates a work (that can potentially achieve copyright) in their own time – if the employment contract stipulates that the employer will own all works created by employee during the time that they’re employed by the business.

How do I know who owns the copyright in the work created?

There are a number of things that you should do to check who owns the copyright in a work:

  1. Check the employment status of the person who’s produced the work – if they’re an employee it’s probable that the business owns the copyright in the work. If they’re freelance then this is less certain.
  2. Check the employment contract for the person involved – check whether there are any clauses in their contract relating to the ownership of intellectual property.
  3. Determine when and how the work was produced

Redmans are intellectual property lawyers and London employment lawyers. If you’re concerned with protecting intellectual property, trademark registration or copyright infringement then contact them.

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