Today I am going to talk a little bit about 1) the foundational aspects of IP and how they are put in place by businesses, 2) the benefit of doing so and 3) the risk of overlooking it.
These may not be the most spectacular activities when it comes to making sure your intangible assets, but they are vital.
Let’s get started.
Employment contracts with strong IP clauses
Employees are probably the people who are exposed to your IP the most. In fact, they’re most likely directly involved in creating and adding to its value. Whether it's creative outputs, the reputation of your brand, databases or innovations and inventions.
It is important to define the boundaries of their relationship
Benefit: employees value IP as an important asset in the business and treat it as such.
Risk: If not put in place, employees may leave the business in the belief that they can make use of the IP they have encountered in the business, giving rise to a dispute and perhaps loss of critical IP.
Third-party agreements that cover IP
Whilst employees’ creation of IP within a business reverts to the business, third-party contractors (think: photographers, designers, copyrighters, marketers, etc.) do not. As such it is important to make sure that if you’re working with contractors/freelancers on projects that you have an agreement in place in place to transfer the IP rights to the business.
Benefit: You own the IP produced by freelancers and contractors
Risk: You avoid issues as it relates to ownership down the line when IP become critical or is set to be used in new ways
IP assignments and licenses
For businesses that are generating IP, or those who rely on critical IP (e.g., a patent, key brands etc.) it is very important to make sure that all the t’s are crossed, and I’s dotted.
Business structure often means that in the first instance key bits of IP may be technically owned by individuals such as business directors. This is typically not optimal and something that needs ironing out as a business grows.
Benefit: all IP is held where it should be and can also offer the benefit of tax breaks (e.g., R+D tax credit)
Risk: Directors who leave the business do not hold key IP, and as such will not be able to scupper a business or set up a direct competitor with key IP (we have seen this happen!)
Finally, there are some basic agreements that don’t cost the earth and are worth getting in place properly.
Benefit: Ensures you have a watertight position as it relates to the data and personal information you collect from users of your website. Provides a clear outline of the data handling process.
Risk: Avoids disputes arising from the use of data use (GDPR anyone?) – highly important as it relates to special category data (e.g., health data, financial data, children’s data) as well as highly processed data (e.g., cross-referenced and profile building data).
The more your business relies on website data the more tailored and defined this needs to be. Sometimes people download a template online for these – but crucially, templates by virtue of being boilerplate never, ever cover the unique IP requirement of an individual business.
Just because these things aren’t as exciting as a shiny new trademark or a patent – doesn’t mean that they’re not important.
In fact, this kind of “bread and butter” IP can, in many instances, be the most important of all.
Typically, these are the first things we look at when it comes to an IP audit within a business, and more often than not we find there are some quick wins to be had by putting everything right!
As always, more than happy to speak with you about this or anything else.