A typical IP clause in an employment contract says that works created "during the course of your employment" belong to your employer.
This is essentially echoing the "work for hire" principle in UK employment law.
The notion of during the course of your employment looks to be open to interpretation.
It seems to mean:
- while you are on company time
but it can also mean:
- while you are employed to do something of a particular nature for us you can only do it for us.
I am explicitly concerned about software development, which falls under copyright law in the UK.
Many software developers have several side projects which they want to keep independent from work for their employers.
An oft quoted example is that its okay for you to do something completely different like write a novel but not okay for you do something similar to your employer, like say software development.
There are many kinds of software development. Some which might overlap with work for an employer and some that might not. Before everything was software this was less recognised but it could still be an issue.
Further as many are now in remote / flexible working environments, It is less clear which hours are "employee hours" and which are "company hours" unless someone keeps a very strict logbook (which is desirable and challenging by not impossible).
It is also assumed that you would keep your work on an entirely separate computer system from your employers.
I have heard of many contracts which unfairly favour the employer, for example:
Any rights in Intellectual Property belong to the Company. This will apply whether you make, discover or create Intellectual Property in the course of the duties of your employment, on the Company premises, at home or elsewhere, and whether you carry out the work in the Company’s time or in your own time.
This is clearly a red flag which needs to be negotiated if you care about your side projects.
If you successfully negotiated away the "or in your own time" clause would evidence of that negotiation be sufficient to demonstrate the intent of the contract as in the employees favour?
This example suggests:
Products resulting from the Employee’s duties according to the terms of employment – individual or joint, including ideas, software development, inventions, improvements, formulas, designs, modifications, trademarks and any other type of intellectual property are the exclusive property of Employer, no matter if patentable.
This does not explicitly mention an employees right to their own side projects. Is it sufficient?
Is an extra clause explicitly stating your rights to side projects necessary?
Does anyone have an example of contracts that provide some kind of explicit protection for employees own work (perhaps like the CA law) or where this has been negotiated successfully?