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Copyright in an employee’s work

This is a post about avoiding a certain kind of dispute with your employer, rather than winning it.

Section 11(2) of the Copyrights Designs and Patents Act 1998 reads:

Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

Employees often learn from their employment, and may produce work – articles, books, computer programmes – that draws on their working experience and makes use of it. Section 11(2) means that if your employment contract is silent on the subject of intellectual property, your employer may own the copyright in material of this kind that you produce during working time.

That much will often be fair enough. If you want to ensure that intellectual property in any particular material or kind of material remains with you, one possibility is to make sure that you create it in your own time, and (to avoid any room for dispute) away from your workplace. If you create something in your own time that you want to use for the purposes of your employment, make it clear at the time, preferably in writing, that it is work created in your own time that you are prepared to use for your employer’s benefit.

Alternatively, you may want to negotiate for a specific agreement in your contract contrary to section 11(2) that makes it clear that all intellectual property generated by you is yours unless it is created at your employer’s behest and for the purposes of your employer’s business.

Unfortunately, some employers try to include in employment contracts much more comprehensive terms that purport to grab the intellectual property in any work of any conceivable use to the employer that the employee may create during the life of the employment contract, whether or not during working time or using the employer’s equipment, and whether or not it is any part of the purpose of the employment to create intellectual property for the employer.

Clauses of this kind are objectionable. Employment does not give the employer the rights of an owner: that is something different, known as slavery. An employee should be entitled to learn from his experience and develop his skills, and put his skills and experience to use for his own benefit in his own time.

If you see a clause of this nature in your draft contract of employment then, unless you are sure you won’t be creating any intellectual property anyway, you should challenge it. (You should probably challenge it anyway, because letting your new employer get away with nonsense is liable to set the employment relationship off on the wrong footing.) Most employers won’t mean it in fact: if it is there, it is probably because someone working for their lawyers years ago thought it was a hard-nosed kind of clause to include in a precedent, and no-one has given it any thought since. Once you point out what it means, most employers will have the grace to blush and withdraw it.