Most businesses will deal in intellectual property of some form or another; whether you’re a communications and retail businesses or a manufacturing and technology company. According to the World Intellectual Property Association (WIPO), Intellectual property refers to products and processes, written or recorded work, slogans, logos and designs, and other original creations and ideas. Means of securing intellectual property include patents, copyrights and/or trademarks, which can be registered and protected in almost all countries around the world.

Protecting and securing your intellectual property is crucial to ensuring the financial and intellectual investments of any business venture. But there can be some uncertainty as to the ownership of intellectual property created by employees, consultants, even AI, and disputes are not uncommon. So who owns what when it comes to intellectual property?

Employees vs employers

Unless specified otherwise in an agreement or contract of employment, the general rule of intellectual property grants all rights to property created by an employee during the course of their employment (if the invention is made in the course of an employee’s normal or specifically assigned duties) to the employer.

In the case of inventive products and processes, the Patents Act 1977 confers first ownership of an invention to the employer. In relation to copyright works and registered and unregistered designs created by an employee, the Copyright Designs and Patents Act 1988 and the Registered Designs Act 1949 both vest ownership in the employer. Similarly, the first owner of database rights in a database will be the employer, in accordance with the Copyright, Rights in Databases Regulations 1997.

As freelancers, consultants and contractors are considered independent parties unless otherwise agreed, all intellectual property they create will be owned by them and not the company by whom they are engaged. Therefore, it is important that companies ensure that an appropriate agreement is entered into between the company and the freelancer, consultant or contractor from the start.

The disclaimer: Moral rights

While first ownership of the invention, copyright work, design or database will usually be vest in the employer, this does not expressly deal with non-economic rights such as moral rights which are personal to the employee. Moral rights exist relative to the Copyright Designs and Patents Act 1988 and sit alongside copyright to protect the integrity and ownership of the work.

Moral rights include the right to be recognised as the author of the work (otherwise known as paternity right), the right to object to the derogatory treatment of the work (which encompasses unauthorised editing and adaptation of the work), and the right to object to false attribution of the work. It also grants individuals the right not to be identified or named as the author of a work which they did not create. Moral rights cannot be transferred.

How will Intellectual Property change with the age of automation?

Sony researchers in Paris developed Flow Machines, a software capable of composing music on its own, while the boffins at Google continue to perfect their TensorFlow system, to see if AI can be trained to create art and video. As artificial intelligence (AI) becomes ever more advanced, the question of who possesses the rights—economic, moral or otherwise—to original material created by AI systems has arisen.

As yet, no machine has been granted ownership rights, but there’s also no provision for the inventor of the AI technology to be credited with ownership of what is produced either. The US Copyright Office currently understands that copyrights cannot be registered for works “produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author”.

Now, property lawyers are beginning to question whether AI should be credited as an inventor. Though legislation is far from evolved, the law appears prepared and willing to adapt to the coming changes in both modes of employment and means of production. It’s hoped this will ensure adequate provision remains in place for owners to secure their intellectual property.