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Australia: The disrupted workplace and intellectual property
A series of four articles on the opportunities and challenges relating to intellectual property in the current disrupted workplace environment.
Australia | Publication | May 2021
So far in this series about employment and intellectual property, we have discussed starting how you intend to continue (#1) and the value and purpose of creating an IP culture (#2).
Which leads us to our next discussion about where we work. What should a workplace (and those responsible for it) do when work becomes just something you do, in a variety of places and conditions, as opposed to somewhere you go? How do workers and business owners adjust when they no longer have a familiar physical environment which reinforces and reminds everyone of the rules in relation to, use, creation and protection of intellectual property?
At this point it would be tempting to simply repeat everything that we have covered in #1 and #2. But like most things of value, it can be a bit more nuanced than that even though, and perhaps because, most of what one should do, is common sense. Common sense underpinned by good communication and clear expectations.
The last 12 months has brought with it significant changes in the way in which people and organisations work. Workers and their workplaces have innovated, adjusted, and demonstrated agility, perhaps in ways never seen before. Some changes will be permanent, and further changes inevitable. In all of this, working from home as a norm is here to stay.
IP in the workplace usually takes one of two forms; IP that employees have access to and/or use during the course of their employment (employer owned or third party) and IP that is created during the course of that employment. Even when things were so called normal, most lawyers practising in the areas of employment and labour and intellectual property could point to cases and disputes where the line between “during the course of employment” and “on one’s own time and with one’s own resources”, has been blurry. That is, one might not quibble with the employer’s right to own intellectual property created during the course of employment, but what does this mean when there is no longer a physical office or ordinary working hours to delineate between on and off the clock.
When employees are asked or have asked, to work more from and in home environment and with personal equipment and resources, and/or during hours that are outside ordinary business hours, what do you need to do to ensure that:
This question is relevant not only to the protection and retention of existing intellectual property which an employee might need to work with or develop, but also the creation and subsequent ownership of intellectual property that might be brought into existence simply as a result of new and unusual ways of working and the solving of problems that naturally go with that.
The following, unashamedly common sense, suggestions, might assist:
This is where those things we talked about in #1 and #2 will stand you in good stead and, as you will see, will help you manage risk in the scenarios we address in #4.
Publication
A series of four articles on the opportunities and challenges relating to intellectual property in the current disrupted workplace environment.
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