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Worker vs employer: who owns intellectual property?

The leading consultant of the consulting company UKEY Daria Zernina explains the difference between confidential information and information as a result of intellectual activity. The category of valuable information relates to the category of its protection and use.
The value of information is directly related to how reliably it is protected from uncontrolled distribution and use. The better the information is protected and the less people use it in their business, the more benefit it brings to those who own it. And that means its value is higher.

And this is not only about companies specializing in the development of IT-products. Confidential information and intellectual property exist in many other areas: educational, service, marketing, and so on.

There are two categories of valuable information:
Information that is confidential with the given employer – the employee gets acquainted with it or gets access to it in the performance of its official duties;
Information that is the result of intellectual activity (RID) – its employee creates himself in the process of performing official duties.
Much depends on which of the two categories of information. For example, building relationships between employer and employee.

Confidential information is what the employee does not create, but receives from the employer to perform official duties. This can be production, technical, economic, organizational data, as well as information that has real or potential commercial value due to unknownness to third parties.

The most obvious example is the customer base. It is unlikely that there will be an employer who would not think about how to protect her. And some know firsthand that workers, after being fired, can take it with them like a personal mug.

To protect confidential information, it is advisable to establish a trade secret regime in relation to it. This means that you need to consistently implement the following measures:
Develop and approve a list of confidential information that will constitute a trade secret;
To develop and approve a regulation on trade secrets. It should include conditions and measures of liability for violation of the trade secret regime;
Familiarize yourself with the provision against all employees;
Prepare drafts of an additional agreement to existing employment contracts with employees, which will contain conditions on the extension of obligations to maintain confidentiality regarding trade secrets;
Include these conditions in the employer’s model employment contract, on the basis of which documents are prepared for new employees.
At the stage of dismissal, it is important for the employer to demand from the employee to transfer all tangible information carriers available to the employee and containing information constituting a trade secret.

All this will allow the employer:
Restrict access to information in respect of which a trade secret has been established and its uncontrolled distribution;
To obtain from the employee the return, in unaltered form, of the storage media and the information itself that were provided to the employee for the performance of the employment contract;
Determine the amount of damage and submit claims for damages, including after termination of the employment contract – during the term of the commercial secret regime.
In the case of harm (important: real damage, not loss of profit), the employee may be disciplined during the term of the employment contract, and after its termination – to civil law. Courts, as a rule, recover only losses as compensation for real damage. Various other sanctions, for example, fines do not apply.

Information as a result of intellectual activity is works, inventions, utility models and industrial designs, selection achievements, topologies of integrated circuits, production secrets (know-how).

Another common example is the design layouts created by an employee during work. Many employers have faced the fact that retiring employees take with them the source code of all developed advertising materials, arguing that this is the result of their intellectual activity.

Information as a result of intellectual activity is divided into information created by:
Within the framework of official duties in accordance with an employment contract or an order contract for the creation of a particular result of intellectual activity;
As part of a contract or research, development, engineering and technological works that do not have as their goal the creation of RID.
The complexity of protecting the interests of the employer lies in the fact that intellectual rights to the results of intellectual activity are of a dual nature, namely: they are exclusive property and personal non-property (this is, first of all, the right of authorship).

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