Protecting your intellectual property

The ownership and right to use intellectual property is an increasingly important consideration as businesses seek to gain a competitive edge.

Where a product is protected by intellectual property, this can assist when trying to take it to market and to exploit it commercially.

However, where value is involved, disputes can all too often occur as to who actually owns the intellectual property in any such item, and without clear documentation put in place in advance, it is all too easy to end up in costly litigation to try to determine the rightful owner.

Many such problems can occur around the area of copyright. Copyright is a right which occurs automatically when anybody creates something, whether that is a book, a work of art, a piece of music, or computer software. Once an idea is set down and crystallised, copyright arises, and it is this automatic nature which can lead to dispute.

The first owner

The primary starting position is that the person who actually creates the work, usually referred to as ‘the author’, is the first owner of the copyright in that work. So if I write a song on my own at home, then I own the copyright in that song. There are, however, some exceptions to this rule.

Employees

As a general rule, where an employee creates something in the course of his employment, then unless there is an agreement to the contrary, the copyright in that work belongs not to the employee, but his employer. So for example, the content of this blog, while written by me actually belongs to Harrison Drury Solicitors as my employer.

Joint Ownership

Where two or more people create something, then the copyright may be jointly owned. So, if a band writes a song, then conceivably the copyright in that song is jointly owned by all of the members of the band who contributed to it. Note, however, that if the singer wrote the lyrics and the guitarist wrote the music, then separate copyright in each would arise, and vest in the individual band member.

Commissioned Works

A major source of potential dispute is where work is commissioned by a third party, for example, where a company commissions a designer to create a logo for it. On the face of it, the copyright in the logo belongs to the designer as ‘the author’. However it would seem unfair for that designer to then seek to prevent the company from using a logo which it has commissioned for its own branding.

In reality, what tends to happen is that the ‘legal’ ownership vests with the ‘author’, but the ‘beneficial’ ownership vests with the company. Note, however, that this is not always the case, and each matter should be viewed on its merits.

In order to seek to prevent these sorts of disputes arising, a contract should be put in place prior to any work being carried out which clearly defines who will own the work once it has been completed. The costs of such a contract will be significantly less than the costs of litigation to determine ownership after the event, with the added benefit that each party knows where they stand from the outset.

For more information on intellectual property, or any other business protection matter, please contact us on 01772 258321.