Intellectual property

It's not my intention in this essay to provide legal advice about Intellectual Property (IP). My reasons are simple:

1. I'm not a lawyer;
2. IP laws vary between countries; and
   
3. Lawyers often disagree anyway.
   

My goal is to warn that the issues of Intellectual Property ownership are complex and evolving, particularly for university academics.

The most common circumstance where an IP's creator isn't the owner is where it was done in the course of employment. It's my experience, however, that employees and employers alike are too quick to believe that's the case.

In deciding, a number of factors must be considered. It's essential to first explore the boundaries of the creator's employment contract. Only then can you move to the question of where the creation of the IP falls: In, out or straddling.

For an interesting discussion about ownership, I suggest Ann Monotti's, Who Owns My Research and Teaching Materials, My University or Me? (Sydney Law Review, 1997). Monotti demonstrates some of the difficulties in sorting out such matters.

If you have created intellectual property or plan to create valuable IP, I suggest that you get independent advice about protecting that property. Your union should be your first stop. ▪

The wise man in the storm prays to God,
not for safety from danger,
but deliverance from fear.
—Ralph Waldo Emerson (1803-1882)

Express and implied

In agreements and contracts, express provisions are those that are explicitly spelled out. Implied provisions are those that, although not explicit, are required by the circumstances, and are, therefore, also applicable.

In agreements there's neither the time nor the paper to elaborate every circumstance within which an agreement may be interpreted. As an example, if an agreement says that the working hours are from 9 am to 5 pm, it's implied that those hours are based on the time zone where the work is to be performed. "In the local time zone," therefore, is an implied provision.

Because disagreements arise about what's implied, it's important to know how to decide: A provision is implied if within applicable circumstances one or more express provisions cannot reasonably operate without the application of the claimed, implied provision. Returning to our earlier example, it would be impossible for "working hours" to have real meaning if they could be in any time zone.

An art in agreement making is knowing how much to specify.

("Side agreements" are another thing — often arising when the authors of some principal agreement notice that they neglected some important matter. Such additional understandings are often left, unfortunately, as verbal agreements.) ▪

I've had a lot of trouble in my life,
most of which never happened.
—Mark Twain (Samuel Langhorne Clemens 1835-1910)