Employee IP: what rights does the employer have?
Copyright, designs, patents: how to ensure your company owns the intellectual property created by its employees.
The question of who owns the intellectual property in works and inventions created by employees is a recurring one. Does the company hold the IP rights, or does the employee retain ownership?
This issue arises in copyright, designs and patents. As a general rule, it is preferable to provide for the transfer of intellectual property by contract, before the work or invention is created.
The employee is considered the author of the work (Article L111-1 of the French IP Code). The only exception concerns collective works (Article L113-2): where the work is directed and managed by the employer and the employees’ contributions form an inseparable whole, the employer is regarded as the author. In practice, distinguishing a collective work from a collaborative work is difficult — it is unwise to rely solely on this basis.
Designs follow the same regime as copyright. The employee holds the rights unless the work qualifies as a collective work.
Two scenarios: if the work is software, rights vest automatically in the employer (Article L113-9 of the IP Code). If the work is not software, copyright belongs to the employee unless a contractual assignment clause is included.
The most reliable approach is to include a copyright assignment clause in the employment contract, complying with Article L131-3 of the IP Code: specifying the rights assigned, duration and territory. An overly broad clause would be void. For further detail, see the articles on startup IP ownership and essential clauses in a software development contract.
Article L611-7 of the IP Code provides three regimes: mission inventions (employer’s property, with additional remuneration for the employee), attributable non-mission inventions (employee’s property, but the employer may claim attribution with fair compensation), and non-attributable non-mission inventions (employee’s property).
The key point is the inclusion of the inventive mission in the employment contract. For an overview, see the intellectual property services page.
Addressing IP ownership from the conclusion of the employment contract avoids uncertainty and disputes. If you need to structure IP assignment within your company, book a call.
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