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The Contract of Employment$
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Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, and Jeremias Prassl

Print publication date: 2016

Print ISBN-13: 9780198783169

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780198783169.001.0001

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Intellectual Property and the Contract of Employment

Intellectual Property and the Contract of Employment

(p.582) 27 Intellectual Property and the Contract of Employment
The Contract of Employment

Jeremias Prassl

Oxford University Press

The traditional approach to intellectual property rights (both patents and copyright) is to treat inventions and discoveries as fruits of the employee’s labour, thus belonging to the employer as the work-taking counterparty to the contract of employment. This chapter identifies several key limitations of this approach, beginning with those inherent in the use of the contractual model as the paradigm form of employment relationships: the unclear scope of the contract of employment and its inability to deal with complex employment scenarios are imported into the statutory regimes of the Patents Act 1977 and the Copyright, Designs and Patents Act 1988. A further set of limitations arises from the common law operating to control the impact of express terms in the contract of employment, and the side effects of non-derogation provisions in the 1977 Act. Implied terms, especially those of fidelity and confidentiality, are the third limitation to be explored.

Keywords:   intellectual property, patent, copyright, invention, discovery, express /implied terms, fidelity, confidentiality

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