Whose IP is it anyway?

Abstract

Identifying IP ownership is not always straightforward, and those who are seeking to assign or license IP first need to ensure that they in fact have the relevant right. Focusing on copyright, patents, designs, and confidential information, this article explores how badly things can go awry if IP ownership is either not dealt with or is not dealt with clearly and precisely. Wherever possible, agreements should be in place to clarify the ownership position. Although IP is generally owned by the person who creates it, there are exceptions to that rule. Issues to consider include: the implications of IP being created by an employee or a freelancer; whether co-ownership may arise and, if so, what the respective rights of the co-owners are; what the statutory position is and whether it has been modified by agreement; and whether rights may arise in equity. It is important to bear in mind that IP ownership laws in relevant jurisdictions may differ. Slightly different issues arise in relation to confidential information, which is not property. Rights and obligations regarding the unauthorized disclosure of confidential information may be enforced in equity or as a matter of contract law. It is crucial to define very clearly the information which constitutes confidential information and the obligations of each party in relation to it. Specific issues arise in relation to use or disclosure of confidential information by employees and ex-employees. If IP ownership is not dealt with clearly and expressly, the uncertainties may degenerate into difficult and expensive legal battles with uncertain outcomes dependant on the court's analysis of statements and conduct.