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Genevieve Lakey, Aitken PartnersBy Genevieve Lakey, Aitken Partners, Melbourne, Lawyers

Intellectual property can be one of the biggest assets of a business whether it be copyright in content, software or IT systems or the logo of the brand (note: A logo, if sufficiently artistic in design, will be covered by copyright).

To appropriately protect such IP, it is critical that the business is clear on who owns the IP and that they have appropriate clauses in their contracts to ensure its protection.

Copyright

Under Australian Copyright law employees and contractors are treated differently.

Employees

Under the Copyright Act 1968 intellectual property created in the course of employment is owned by the employer. This does not extend to IP created by an employee that is not related to their employment. This position can be altered by the terms of their contract or relevant workplace policies.

Contractors

It is common assumption that if you pay someone to develop content, develop a website or design a logo, the IP created while completing that task will be owned by the person who paid for it. However, this is not the position if the person is a contractor. If the contract for services with a contractor is silent on ownership of IP, it will remain the property of the contractor because the general position is that the author or creator of a work is the owner of the copyright within it.

Written agreement

In order to ensure that ownership of IP vests with the business it is important that both employee contracts and contracts for services with contractors include an IP clause. This clause should clearly address the issue of ownership of IP, particularly in relation to contractors and state that the IP is transferred to you on its creation. This not only provides clarity to the parties entering the agreement but also the need to recover rights in material and pay unexpected sums to have the rights assigned.

Contact the author directly by email or by telephone.

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