A business journalist asked me today: "What role can directors play to secure their organisation's intellectual property".
Nice question. But I'd like to answer a better question.
It's this: "What role can directors play to build and protect an intellectual property business and its future?"
Under law in Australia and most countries whether A is B’s employee or, alternatively an independent contractor, is critical for ownership and protection of intellectual property. And that's just the beginning.
In Australia, if A is an employee numerous legal consequences follow. Superannuation must be paid, income tax must be taken out, and workers compensation insurance put in place.
To answer the question of whether A is an employee involves considering layers of law, facts and circumstances. There are variations for employees working in the private or public sector, under awards or enterprise agreements, or Common Law contracts and so forth.
Investment to create wealth through ownership of a brand is wasted if there is ignorance of intellectual property law ("IP"), IP search procedure, and IP protection tasks.
This is illustrated by probably the most common of all IP risks - legal issues arising from poorly selected brands and poor product identification.
Consider this scenario - Company A names a product and releases it . Assume the product name has IP rights. Some time later Company B launches a product with a similar name and for the same market.
It's produced by Chalk Hill Winery in McLaren Vale.
* [VIDEO] Picking a trade mark
Can a person be legally an "employee" if he or she works casual or part-time for multiple businesses? What makes a person an employee and not an independent contractor?
In law the short answer is many factors. There are major financial and legal consequences. Employers have statutory obligations and employees have statutory entitlements, eg to superannuation payments.
The employees or contractors question arose in a 2011 court case involving the Australian Tax Office - On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)  FCA 366.
Every start-up operates in its own unique circumstances. It has its own mix of products, people, markets and operating methods. It has its own vision of its past, present and future. Differentiation moves markets.
Every start-up seeking funding or raising post-establishment capital also requires a customised pitch. It pitches its circumstances and vision to raise funds. Information moves markets.
Sharing information on differentiation brings together investors and start-up entrepreneurs or founders. Collaboration supported by documentation moves markets.
These facts have grown trade since ancient times.
This article is a "how to" checklist for start-ups and investors seeking to get together.
"What product exclusivity am I getting?" This is a common first question asked by prospective distributors considering a draft distribution agreement.It's usually followed with a money question such as: "How much do I have to pay the supplier or manufacturer?"
Let's consider these questions and techniques for assessment of distribution proposals and draft distribution agreements. The aim is to design realistic, workable and practical arrangements between manufacturers, suppliers and distributors.
The starting point is to recognise that these exclusivity and money questions are often based on assumptions due to what we'll call a 2D view of distribution arrangements. Having drafted or reviewed over 350 distribution agreements, I see them in 3D.
Over recent months that's the learning from our client work as well as from external developments in intellectual property ("IP") law in Australia and abroad.
This article is an update on those external developments, answering these five questions:
We are seeing a growing trend among our software developer clients. They are entrepreneurial business of all sizes. They’re run by smart people who know only too well that the value in what they offer is often not found in "out of the box" software or stand-alone products. They realise customers are busy people who value software that serves niche needs and is efficient, reliable, up-to-date and easily maintained.
These software developers and their customers are realising that the best way to provide this is to keep the software developer in the loop.
The rationale for intellectual property law has changed over time. The topic became highly politicised a decade or two ago with rarely unconfused debate.