Who is the first owner of each of these intellectual property rights and is this different for rights created in the course of employment or under a commission?

Intellectual Property

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Copyright – Generally, the person who created the work (i.e. the author) owns the copyright in the work. However, there are exceptions to this general rule. Some exceptions are:

Employment: If the work is created by an employee pursuant to the terms of his employment, the employer owns the copyright in the work.

Special situation for newspaper/magazine/periodical employees: Where an employee of a newspaper, magazine or periodical creates a literary, dramatic or artistic work pursuant to the terms of his employment and for the purpose of publication in a newspaper, magazine or periodical, the proprietor of the newspaper, magazine or periodical owns the copyright in respect of publication in or reproduction for the purpose of publication in any newspaper, magazine or periodical. The employee owns the remaining rights that make up the copyright bundle of exclusive rights.

Commissioning: If a portrait/photograph/engraving is commissioned by another party, the commissioner owns the copyright in the work. If the portrait/photograph/engraving is required for a particular purpose, this purpose must be communicated to the commissioned party. While the commissioner is the copyright owner, the commissioned party has the right to stop others from doing any act comprised in the copyright, unless such act is done for the particular purpose for which the portrait/photograph/engraving is created.

For other types of commissioned works: Ownership belongs to the commissioned party, unless the commissioner and commissioned party otherwise agree.

Registered designs – The designer of the design. If the rights are created in the course of employment or under a commission, then the employer or commissioning party will own the rights in question.

Geographical indications – N.A.

Layout-designs (topographies) of integrated circuits – Where the layout-design is not created in pursuance of a commission or in the course of employment, the creator of a layout-design is the owner. Where the layout-design is created in pursuance of a commission, the person who commissioned the layout-design is the owner. Where the layout-design is not created in pursuance of a commission but is created by an employee in the course of his employment, the employer is the owner.

Patents – The inventor(s). However, if the rights are created in the course of employment (i.e. normal duties of the employee or specifically assigned to him or has a special obligation to further employer's interests), the employer would be the owner of the invention. Where an invention is created in pursuance of a commission without more, the owner of the invention would be the inventor rather than the commissioning party.

Plant varieties – The breeder of the plant variety. Where the plant variety was bred, or discovered and developed, by the employee, the employer would be the breeder and thus owner. If instead pursuant to a commission without more, the breeder would be the person who bred the plant variety rather than the commissioning party.

Trade marks – The authorised user of the mark in relation to the particular goods or services, or the party that has the bona fide intention to use the mark in relation to the particular goods or services, in the course of trade.

Trade secrets/know-how – The creator of the rights in question. The employer and commissioning party would have no automatic ownership over the rights.

Updated: May 23, 2017