Intellectual Property

Monday, August 4, 2008

Protect your work

In the UK, the first owner of a copyright work is the author, unless the work is created by an employee in the course of their employment. In that case, the copyright will belong to the employer unless the parties have agreed otherwise (eg between universities and academics, who may be permitted to own copyright in scholarly articles and books that they author, even if the university owns the copyright in course materials).

In business, there is a common misconception that the person who has paid for work to be done owns all the intellectual property rights in it, and considerable dismay arises when lawyers have to explain that this is not the case.

There will be some contracts into which the law will imply an assignment (an example being when an opportunist tries to ransom the copyright in a logo back to the company that had used the logo and so made it valuable). But these cases are rare. More often, the most the courts will imply is a licence to use the copyright work, but only to the extent that this is necessary to give business efficacy to the contract.

So the licence will be limited to what is strictly necessary and no more. And the courts will take an objective view, considering what both parties intended. They will not be swayed by the arguments of the commissioning business as to what it subjectively thought (or hoped) was the case.

If ownership of copyright and related rights is going to be important, it is best to negotiate that ownership up front. UK law requires a written assignment of copyright and so on, signed by the assignor. If that cannot be obtained at the beginning, there should at least be a good record that the parties intended the paying party to own the intellectual property rights. The administration of such contracts may be boring, but is likely to be cheaper than dealing with a dispute for a valuable asset.