Let’s get some facts straight about intellectual property and what it means to you. Deep dive!
What is IP?
Intellectual Property (“IP”) is something that you can’t touch. IP Australia says that it’s “the property of your mind or proprietary knowledge.” So, IP rights are the rights you have for property that has come from your mind. Whoooaaa...psychedelic.
Let’s take a graphic designer print as an example to play with. If a graphic designer sells a print, their customer owns that print (the physical product that they can touch and hold). The IP in that print is the actual creation (i.e the unique combination of colours, patterns and words) that the graphic designer used their mind to create. When the customer (in this situation) buys the print, they aren’t buying the IP because the graphic designer who created it is still the owner of that IP. Make sense?
Who owns IP?
As with our graphic designer above, generally the IP is owned by the person who created it with their mind, unless there’s a contract or law which changes this. If there’s a contract or law in place, then whoever the contract or law says owns the IP is the owner.
Being an owner of IP gives that person the right to use the IP how and when they see fit. For example, our graphic designer decided that she would use her IP to make prints that she can sell.
Buuuut some businesses may choose the way to use their IP is by assigning or licensing it to another person for them to use…
What does it mean to license IP?
...SMOOTH TRANSITION! *insert thank you bows for the inevitable applause here*
In a nutshell, a licence is a bit like a permission slip, except instead of Mum telling the school you’re allowed to go to camp, it’s the IP owner telling someone else (the licensee) that they’re allowed to use the IP for a certain reason or purpose.
Generally, licenses are limited by:
- purpose - what the licensee is being allowed to do with the IP;
- time - when the licensee is allowed to use the IP for that purpose including when they can start and when they have to stop;
- territory - where the licensee is allowed to use the IP for that purpose.
If we go back to our trusty graphic designer example, she may choose to license the IP (remember not the physical print, just the unique combination of colours, patterns etc) to print onto t-shirts which they are allowed to sell for one year in Australia. The licensee might then decide that they now would also like to print jumpers with the same IP. This isn’t covered by the license, and therefore it’s not allowed, so they will have to go back to the graphic designer and get another license (maybe even pay an additional fee) to be able to do so.
What does it mean to assign IP?
When you assign IP to another person, you assign them certain rights to do with that IP. What the rights are that are being assigned can be entirely decided by the parties. This could be the entire ownership of the IP (except for moral rights - don’t worry, we’ll get to that later), or you could even assign ownership but maintain the right to use it yourself for certain things.
Just like with licensing, the parties set out what will occur, depending on what they decide they want the arrangement to look like between them.
Want to know more about assigning IP? Take a look at our article on How do I Transfer Ownership of My Trade Mark to Another Business.
Can I keep my rights as an owner if I license or assign my IP?
Short answer? Absolutely! You’re allowed to license or assign your IP however you wish. Just make sure that the contract you're using to do this is super clear: it needs to explain exactly what it is you are retaining, and how you want to be able to use those retained rights in the future.
What are moral rights?
Moral rights are rights that can’t be assigned and that will always belong with the owner, it’s basically the right to be credited for the work they created. Even where an IP owner/creator sells ALL of their rights in relation to their work, this moral right to be credited still remains and can’t be assigned to the person buying it. However, you can, in a contract, say that the owner/creator won’t make the purchaser credit them/won’t enforce those moral rights against the purchaser. But think hard about why you want to give away that right!
What do I do if someone is using my IP without my permission?
This is where it gets tricky and we highly recommend you get personalised legal advice that considers every aspect of the situation. Generally, it’s a good idea to ask nicely for them to remove the IP which has been used without your permission. Sometimes people won’t have realised what they were doing or didn’t realise they needed to get permission, so once they understand, they’re generally willing to remove it. When they don’t, this is where legal advice is really handy to come in and have a look about what to do. Always lead with a cool calm head, don’t get angry and post comments, you can’t take that back! Instead take screenshots, gather evidence and then approach privately.
Want to know what else you might need? Book in a 15-minute consult with one of our creative-loving lawyers, and let us give you the lowdown on all things legally legit.
***Disclaimer. Please read!!***
This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.
© 2019-2020 Foundd Legal Pty Ltd