The disrupted workplace and intellectual property

The COVID-19 pandemic continues to impact the conduct of commercial life and, understandably, is a matter of focus right now. Whilst the assessment of future risks and opportunities is a key activity for Australian businesses at any time, the need for, and difficulty of, this exercise is more acute than ever.

What we know from previous periods of disruption is that an organisation’s people and their intellectual property (IP) are at the heart of a number of challenges and opportunities when organisations are under pressure, adapting to change, surviving and then (hopefully) thriving. For example:

• Organisations innovate in times of disruption – solving problems in new ways under the pressure of necessity – very often creating valuable IP rights as they do so.
• People and talent move, often with information and materials in which IP subsists. Even innocent misuse in the hands of a business retaining that new talent can give rise to significant issues.
• Protection of IP by securing rights from contractors and employees, reinforced by contractual covenants of confidentiality, is vital.
• Creating a collaborative culture with a unified view of surviving and thriving which is underpinned by a culture of respect for IP rights and confidential information, supported by appropriate policies and mechanisms for ensuring the ongoing maintenance of that culture (e.g. audits, education). This can help organisations gain a competitive advantage by capturing the IP generated through daily problem solving and avoiding infringements.

IP is embodied in objects, tools and materials and IP rights owe their existence to legal principles, but IP is created, used, respected or infringed by people, to a large extent in a workplace setting. As such navigating the challenges and opportunities requires taking into account:

• The way that an organisation inculcates and maintains workplace norms, including written policies, methods of training, employee appraisal regimes, disciplinary measures and so forth. How does this differ in the new world of work where employees may not be based at the same office for all of their working hours?
• The technology used by employees to carry out work and the environment in which work is performed. The implications of employees using their own personal equipment to perform work, transferring IP into and out of the organisation, are significant, particularly when asking employees to work more flexibly and in a more agile way than ever before.
• Techniques for generating a culture of engagement to support respect for IP.
• Arrangements for managing the cessation of employment so as to maintain IP protection – particularly where the employee works from home.

From this brief survey of pertinent issues, it is evident that optimal outcomes require more than a regimen of top-down directives backed up by the threat of sanctions.

In this series, we want to open up some conversations about the opportunities and challenges relating to IP in the current environment, and the way in which contemporary workplace issues interact with them. We explores these in four brief case studies based on different points in the workplace life cycle. After that we will hold a webinar in order to draw the issues together and express some conclusions about real-world actions that can be taken now. To share your comments or if you have any questions, please contact a member of our team below.