Figuring out whether you or your employer owns the copyright in work you have created can sometimes be complicated. Generally, as a rule of thumb whether you or your employer owns the copyright in your work depends on two factors:
- Whether you are an employee or an independent contractor; and
- If you are an employee, whether the work was made in pursuing the terms of the contract of employment.
Employee versus Independent Contractor
Employment and labour law governs whether or not you are an employee or an independent contractor. For more information on this please follow this link to our Employment Law Pages. Generally, however, indicators that you are an employee include:
- Performing tasks under the control of an employer, as opposed to having a high degree of autonomy;
- You have regular and set numbers of hours of work;
- You are entitled to superannuation;
- You use the employer’s tools and equipment as opposed to supplying your own.
Unless the contract governing the consultant/ contractor provides otherwise, independent contractors will own the intellectual property created during the working relationship. Independent contractors may, however, grant the employer a licence to use the intellectual property that was created during the relationship.
The starting point for employees is that intellectual property created during the course of a working relationship belongs generally to the employer. If, however, the employee acts outside of the scope of his or her employment when creating the intellectual property, there is an argument that the work belongs to the employee.
Indicators that the Work belongs to the Employer
Whether or not intellectual property was created in pursuance of an employment contract requires an analysis of an employee’s employment contract. Generally, however, indicators that the work was performed in pursuance of the employment contract includes:
- That the work was essential to performing the contract.
Indicators that the work belongs to the Employee
Indicators that the Work belongs to the Employee include:
No obligation in the employment contract to create the work; and
That the work was created in the employee’s own time or as an extracurricular activity.
If you are an employee and are unsure of whether you own the work your have created during the course of your working relationship with your employer, contact a member of our Intellectual Property Law team on (07) 3252 0011.
This article was written by Eduardo Cruz (Associate).