Intellectual property in the course of employment: What is it and do I own it?

O*NO! You’ve created something amazing at work and now your boss is telling you they own it, that can’t be true…can it? During your average day at work, you may be creating products, documents and materials or even just turning your own ideas into something more tangible. It is always important to know your rights but even more so when they’re within a somewhat grey area. Today’s blog is all about intellectual property in the course of your employment and the rights both you and your employer have; I promise there’s no bad takeaway jokes this time, you’re safe…for now.

What is Intellectual Property?  
Intellectual property is essentially the property of your mind. Within the context of employment, intellectual property can be anything that is your brain child, from documents and products to designs and plans, but extends to pretty well anything that can be copyrighted.

What does the law say?
At its most basic level, the law states that any intellectual property conceived during employment is the property of the employer and not the employee. There is a two-step test in place to check if the employer is entitled to own the intellectual property: the creator must be an employee and the property in question must have been created during the course of employment. Basically, if you’re employed to do it, the owner is probably the person paying you.

What does “during the course of employment” mean? 
One of my Uni lecturers had a great example for how “during the course of employment” works in real life. Say a delivery driver is going about their day delivering goods to civilians when suddenly they stumble across a duffle bag filled with $1,000,000. This duffle bag, and of course the money, are not now owned by the delivery driver but instead by their employer as the money was found during the course of employment (ok, putting aside the bigger issues of reporting the missing money to the police, of course!). Essentially, the driver would not have had the opportunity to find the money had they not have been employed and working that day. More often than not, this principle is true for intellectual property created in the course of employment; say your boss had not given you a specific task, your mind may not have been galvanised to create the intellectual property in question.

If, on the other hand, you create something that isn’t for the benefit of your employer in your own time and using your own technology, your employer would have no claim on its copyright as it was not created during the course of employment and fails the two-step test.

For real estate agents intellectual property may include marketing campaigns and/or strategies you’ve come up with, promotional materials you’ve designed and implemented, methods and systems you’ve created and/or made more efficient and effective - just to name a few. If the 2 step test applies to how your intellectual property was created, it may mean that they are owned by your employer. It is important to note that if you are employed as a contractor for a real estate agency, you would generally own copyright over your work - unless your contract states otherwise.

Check your Contract!   
When you are unsure if you own a piece of intellectual property, the most important thing to do is check your contract! Reading over and correctly interpreting any terms in your Contract (or proposed Contract) that relate to intellectual property while in the employ of your real estate agency could save you a lot of grief in the long run, especially if it doesn’t reflect your understanding of the matter or if you want to negotiate amendments.

Key Takeaways

• Intellectual property created in the course of your employment is usually the property of your employer;

• Don’t stress if you’re unsure of your rights at this moment in time, read over your contract and get proper legal advice;

• It is important to negotiate the terms of your employment contract before signing if you want to own the intellectual property you create during the course of your employment; and

• Contractors will generally own any intellectual property they create, however it is becoming increasingly common that the agency will still own the IP.

Your Next Steps

If intellectual property or your employment contract is on your radar or you just want to know more about any legal blind spots, please feel free to email [email protected] to discuss with us or book in a free 10 minute chat with our legal experts here.

Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact us. PS - congratulations if you have read this far, you must love legal disclaimers or are a sucker for punishment.