If you are an innovator or a creator, it is crucial to understand your intellectual property rights. The question of whether you own your intellectual property (IP) can be particularly confusing if you are an employee. Generally, the intellectual property you create in the ‘course of employment’ will belong to your employer. In this article, we explain how to:

  • determine if your employer can claim ownership over your intellectual property; and
  • protect your IP.

What Does The Course Of Employment Mean?

What is the ‘course of employment’? The answer to this question depends on the type of work you do. 

In relation to intellectual property, this refers to anything you create as part of your employment. 

For example, if you are contracted or employed to develop software, then it is likely that any software you create is owned by your employer.

However, if creating software is not part of your employment duties, you may own the intellectual property rights as long as you did not use company resources in the creation of the intellectual property. Another factor to consider is when you begin and end your work day.

Working on a project or creating something outside of the hours of your employment means that your employer is less likely to successfully claim ownership over your IP. Of course, all of this will depend on what your contract of employment says. Some key issues to consider are whether:

  • your employment contract outlines your roles and responsibilities, and if so, whether creating IP (e.g. software or articles) falls under these roles and responsibilities; and
  • your employer or any other staff member directed or contributed to the creation of the IP.

Your Employment Contract

Before signing an employment contract, it is important to read it very carefully. You might be signing over more than you think. Some contracts contain special clauses that give your employer rights over your ideas or inventions even if they have nothing to do with your job. Although these restrictive clauses may be found to be invalid, you should still read the clause carefully and flag any provisions that: 

  • do not make sense; or 
  • seem too restrictive.

You should also check if your employment contract includes a provision that prevents you from competing against your employer after the termination of your employment. If this is the case, any work, project or venture that competes with your previous employer can place you in breach of this agreement. You should look out for these provisions as they can be very broad and may operate for a lengthy period of time after your employment terminates. While an overly extensive restraint clause can be difficult for an employer to legally enforce, the threat of litigation is very real and could:

  • drain your well-earned capital; or
  • damage your reputation.

Fortunately, these clauses are not likely to establish ownership over your intellectual property. This is particularly true if you created the idea or work in your spare time and without the use of your employer’s resources. If you want to make sure that you are not bound by one of these clauses, look out for any provisions that deal with intellectual property after employment.

What If I Am Working On My Personal Laptop or PC Device?

Sometimes, the resources you use to create intellectual property can influence the question of ownership. Your employer’s right to claim ownership of your intellectual property can extend to works you create using their resources and materials. However, the line between personal and professional may blur if you use your personal laptop or PC device for work. This is important as your employer’s right may extend to intellectual property even outside of work hours. 

Avoid working on your personal device for work-related projects. This will reduce your risk of losing your intellectual property to your employer.

Ways to Protect Your Intellectual Property

Write It Down

Keeping written records of your invention or work can reduce the risk of legal battles over intellectual property ownership. 

For example, keeping a diary detailing the dates and stages of development of your intellectual property can be very useful evidence. 

Emails or electronic records are also useful as long as they record a date and time.

Review Your Contacts

Look out for any clauses in your employment contract that discuss intellectual property. If you are unsure about the wording or the meaning of statements within a particular clause, flag it and raise it with your employer. Preferably this should be via email so that their response is in writing for your records.

Choose Your Hours Carefully

Make sure you know when you start and finish work. This will help you determine when you are free to work on your projects without attracting a potential claim of ownership from your employer.

Use a Different Device

Keep your work device separate from your personal device. Avoid using the resources your employer provides.

Key Takeaways

If you create intellectual property as part of your responsibilities at work, your employer is likely to own it. If you create intellectual property outside the scope of your duties as an employee, however, then subject to your employment contract you will likely own the intellectual property rights. You should read your contracts carefully as there may be a clause that claims ownership of your intellectual property created during or after your work period. If you have questions about intellectual property you have created, contact LegalVision’s intellectual property lawyers on 1300 544 755 or fill out the form on this page. 

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Christopher Parker
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