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right to exclude the commissioned
party from exploiting the work as well
as the right for you to simply use the
work.
Q. Perhaps we should not mention
IP rights and act as if we own them?
A. Risky business. In deciding what
term needs to be implied, the choice is
that which doesn’t exceed what is
necessary in the circumstances. If, for
example, the necessity to imply a grant
of some right could be satisfied both
by (1) a licence of the IP right and (2)
an assignment of that right, you’ll
only be able to imply a licence. A court
won't assign a right unless they
absolutely must.
You must consider the price paid for
the commissioned work, the impact
on the commissioned party of an
assignment of the IP right to you and
whether it can reasonably have been
intended that the commissioned party
should retain any IP rights. And
remember, you could always find
yourself in court defending a claim of
IP right infringement.
Your most sensible course of action,
whether dealing with employees
Flame Hardeners Ltd - Induction Hardeners Ltd
Flame Hardeners Ltd - Induction Hardeners Ltd
Enquiry Number: 12
26 MWP november 2007
under a contract of service or a
contractor under a contract for
services is to address IP in writing
prior to commencement of the
working relationship.
Q. So putting something in writing
would solve any problem?
A. Only if is drafted very carefully. A
case regarding a multi-party research
agreement recently found its way to
the Court of Appeal. A party was
described both as a ‘sponsor’ in one
clause and as ‘agent’ in another.
Whether or not the party owned the
IP right in issue depended in the end
on judicial interpretation of two
clauses in the agreement, one in which
as sponsor it would own the right and
one in which as agent it wouldn’t. You
should always enter into clear
contractual terms, preferably before
work commences but always as soon as
you think IP will be an issue, setting
out clearly who will own any IP
rights.
Ben Hopps is head of the Litigation
& Dispute Resolution Department at
Sykes Anderson LLP solicitors.
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