Work: Something you do or somewhere you go?

The disrupted workplace and intellectual property

Australia Publication May 2021

So far in this series about employment and intellectual property, we have discussed starting how you intend to continue (#1) and the value and purpose of creating an IP culture (#2).

Which leads us to our next discussion about where we work. What should a workplace (and those responsible for it) do when work becomes just something you do, in a variety of places and conditions, as opposed to somewhere you go? How do workers and business owners adjust when they no longer have a familiar physical environment which reinforces and reminds everyone of the rules in relation to, use, creation and protection of intellectual property?

At this point it would be tempting to simply repeat everything that we have covered in #1 and #2. But like most things of value, it can be a bit more nuanced than that even though, and perhaps because, most of what one should do, is common sense. Common sense underpinned by good communication and clear expectations.

The last 12 months has brought with it significant changes in the way in which people and organisations work. Workers and their workplaces have innovated, adjusted, and demonstrated agility, perhaps in ways never seen before. Some changes will be permanent, and further changes inevitable. In all of this, working from home as a norm is here to stay.

IP in the workplace usually takes one of two forms; IP that employees have access to and/or use during the course of their employment (employer owned or third party) and IP that is created during the course of that employment. Even when things were so called normal, most lawyers practising in the areas of employment and labour and intellectual property could point to cases and disputes where the line between “during the course of employment” and “on one’s own time and with one’s own resources”, has been blurry. That is, one might not quibble with the employer’s right to own intellectual property created during the course of employment, but what does this mean when there is no longer a physical office or ordinary working hours to delineate between on and off the clock.

When employees are asked or have asked, to work more from and in home environment and with personal equipment and resources, and/or during hours that are outside ordinary business hours, what do you need to do to ensure that:

  1. the line referred to above remains clear and bright; and
  2. intellectual property, whether of the employer or third parties to whom that employer owes professional obligations or duties of confidence, is protected.

This question is relevant not only to the protection and retention of existing intellectual property which an employee might need to work with or develop, but also the creation and subsequent ownership of intellectual property that might be brought into existence simply as a result of new and unusual ways of working and the solving of problems that naturally go with that.

The following, unashamedly common sense, suggestions, might assist:

  • Revisit the terms of employment in place with your workforce and adapt and remind the workforce that those rules apply practically and conceptually to their new working conditions just as much as they did before.

    In doing so, be prepared to amend or supplement the terms of employment to reinforce this if necessary. Use new working arrangements as an opportunity to refresh and revisit workplace rules and expectations in relation to IP.

  • Be aware of your surroundings. Security is not just about IT security; when people work from home, it is about the physical security of those premises, and the eyes and ears of those who may share those premises with them. This is an extension of the reminders those working in professional services will most likely recall from induction processes in relation to conversations in common areas, public transport and lifts. It is ok to discuss with your employees their home arrangements to the extent that they may impact on the security of an organisation’s intellectual property.

    As part of this, provide education and support in relation to maintaining confidentiality boundaries in shared home environments. What can other residents of the home see and hear? Think about and establish protocols in relation to the appropriate retention and destruction of work product and materials and files that may be taken home or created at home.

  • Have discussions and establish rules in relation to what is able to be taken physically from the traditional workplace into the home workplace, whether physically or electronically. In other words, talk to employees about what they take home in their bags and email to their personal email addresses (if anything) in order to perform their role from home. This is important not only to protect the information from other residents and visitors to the home, but also for an organisation to be alive to the movement of its intellectual property and to reinforce obligations regarding destruction after an authorised use outside of the workplace.

  • Of course all of this can and, we would suggest, should be done in a way which not only reinforces already existing protocols and rules but which provides support to employees in their new flexible working environments.

  • For some workplaces, the mere shift to a different physical working environment, may require problems to be solved often by the employee in that homework place. Some of these solutions may be mechanical, technological or organisational. The old adage of “every time you solve a problem, look for IP” is as apposite in the at home working environment as it ever was on a building site, mine site, or a professional services office tower.

  •  Make sure that your employment terms are fit for purpose and that employees are cognisant of the rules relating to ownership, particularly for employee generated IP. Reinforce and explain the protocols or reporting and disclosure to develop an IP rich solution.

This is where those things we talked about in #1 and #2 will stand you in good stead and, as you will see, will help you manage risk in the scenarios we address in #4.

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