In Australia, as soon as a work is first written down or recorded in some material form, it is automatically copyrighted. The creator doesn’t need to do anything to gain copyright or protection of their work. Copyright Law is governed by the Copyright Act 1968.
Under the Act, the default principle is that the original author owns the copyright. However, there are exceptions to this and employment can be one of them.
So, who owns the intellectual property an employee creates?
Generally speaking, for an employer to own the copyright of works created under the employment of a worker:
- The original author must be an employee rather than an independent contractor
- The work is created in pursuance of the terms of their employment – I.e under the type of work the employee is expected to carry out
When it comes to an independent contractor, copyright automatically belongs to them. However, the parties involved can agree on a different arrangement. The rights of the copyrighted material can be sold, licensed or transferred to another party.
The matter of who owns copyrighted material under the course of employment has been tested a number of times in court. It’s a common dispute and the court will look at many factors including the terms of employment and if the worker is indeed an employee.
Business.Qld.Gov.Au has some great examples of who owns the copyright of work created in the workplace. Check them out here.
Moral Rights
It’s worth noting that whether or not an employer owns the intellectual property created during your term of employment, moral rights still belong to the original author.
Moral rights are non-economic rights and are recognised as “the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship.”
IP Risks When an Employee Leaves Your Business
Aside from the issue of who owns copyrighted material created during employment, there can be intellectual property risks when an employee leaves your business. Employees have insider knowledge to your business’s processes, client database, and confidential information (such as trade secrets).
Here are some tips for protecting your IP as an employer:
- Conduct an IP audit and ensure you have a robust IP strategy in place. If you’re not aware of what IP your business possesses, this can leave you vulnerable. Check out this blog article of ours here.
- Review your employment contracts and independent contractor agreements regarding IP ownership. Ensure you have a well-drafted ‘restraint of trade’ clause for employees. Check out our blog article on restraint of trade clauses here.
*be aware of whether your staff are considered employees or contractors in the eyes of the law. Read more here.
- Ensure any physical property belonging to your business is returned such as a laptop or work computer containing sensitive information pertaining to your business.
- When hiring new staff ensure your business is not implicated in any way should they be affected by a restraint of trade clause (or similar post employment conditions) from their previous employer.
