Are you sure you own your practice website?

Intellectual Property is the term that is used to describe things that will be owned by someone but are not physical in nature. When a website is created there will be a number of parts to the website that will contain underlying IP and therefore this IP can be owned by someone in a similar manner to a physical asset. This could include IP in a website’s code or design, copyright in any text, images or media and database rights in any database forming part of the website.

Both a website and the content forming part of a website are examples of IP and the ownership of IP is often mistakenly overlooked upon creation. Although it is possible to address ownership at a later stage, a lot of time and effort can be saved by taking ownership of the IP on or before its creation.

Sometimes, mistakes over ownership are not recognised until many years down the line and typically, they will be recognised when it comes to the point of you selling your practice.

Your practice’s website will have underlying IP that will be owned by someone – e.g. your domain name – which may have been provided by a web developer or purchased from a domain name provider or your practice logo which may have been created by an outside consultant. Copyright is an automatic right that is granted to the creator of ‘original creative work’ such as images, text and videos and this will be automatically granted to the creator upon the work being created. If your website and its content were created by someone who is an employee of your practice during the normal course of their employment, then it is highly likely that the IP in the website and the content will have automatically vested in you (as their employer) already. However, if it has not been created by an employee, then you will need to consider who created this work for you and whether ownership of IP was transferred to you upon creation and whether this was documented anywhere.

If you have paid someone to build and develop your practice website for you such as a freelancer or web developer, then in the absence of an agreement to the contrary, that person will own any original IP in the website that they have created. If this is the case, then you will have likely been granted rights to use the IP (with the individual granting you a licence to use it). It is possible to transfer ownership of IP at a later date through what is known as an ‘IP Assignment’ which will need to be signed between the creator of the IP and you. By having an ‘IP Assignment’ in your favour, you will take ownership of this IP going forward and it can then lawfully be transferred to someone else – e.g. a buyer of your practice when you come to sell.

In a practice sale, the seller is required to give warranties (i.e. legal promises) to the buyer about the historical running of the practice and about the ownership of practice assets. This offers understandable protection to a buyer and seeks to reduce their risk in the purchase by having a recourse of action against the seller for breach of the warranties. As outlined above, IP is an asset and should be dealt with in a similar manner to physical assets such as computers or dental equipment. A seller can only give a warranty to a buyer about the fact that they own the practice’s website domain/the content on it if that is actually the case. Time and time again, we see situations where sellers believe they have ownership but as part of the due diligence process this turns out not to be the case. Sometimes, this is identified after completion (after the seller has already given the warranty to the buyer, meaning that the seller has breached the ownership warranty).

Hempsons’ specialist IP team can provide legal advice to you regarding ownership of IP and putting in place legal agreements to have IP ownership transferred over to you, thereby preventing some of the problems outlined above and saving you time and money in the long run.