Taking control – knowing the value of your intellectual property
We live in an increasingly digital age where innovation and new technologies are at the forefront of everything we do, with new apps, websites and content being released daily, helping practices to stay in touch with patients. There is an increasing trend in dental practices developing new websites, mobile apps and publishing regular articles and content to promote their brand and the services being offered. However, consideration is often not given to ownership of intellectual property in this content or ‘IP’ as it will be referred to throughout this article.
One key error that dental practices make is failing to realise where ownership of IP lies and the importance of ensuring you own, or have the rights to use, any IP that has been created for you. In recent dental practice transactions, we have seen examples where practices have commissioned new websites or mobile apps but have not obtained the correct IP rights. This can often be fundamental to a sale and the buyer of a practice will often ask for “warranties” as to ownership of your IP, which you would not be able to give without ensuring that the correct rights have been obtained.
IP is the term that is used to describe things that can be owned but are not physical in nature; examples of this would include copyright in articles written for publication, the code forming part of a website or even the design behind a logo. The owner of IP does not own something that is tangible but instead has the right to control how that intangible thing is used, hence the phrase ‘intellectual property rights’.
You could have joint ownership of IP, it could belong to individuals as well as organisations and you can also sell and grant rights in IP in a similar way to a tangible object. It is important for organisations to be aware that IP is an asset, which in business can potentially carry a significant value.
It is therefore fundamental that you own or have the rights to use the IP that forms part of your website by considering where the IP comes from and who owns each aspect of it. For example, if a company built a website for you and registered a domain, a friend designed your practice logo or a consultant wrote an article for your website, then in the absence of an agreement granting rights or an employment contract, the IP in those aspects will likely automatically lie with their creator and not necessarily with you or your practice. Therefore, you will need the owner of this IP to give you rights to use the IP that they have created on your behalf.
There are two common ways in which rights can be granted in IP. Firstly, an organisation can be given permanent ownership rights through what is known as an ‘IP assignment’, whereby ownership of that IP is ‘assigned’ to you. Alternatively, where an owner of IP wishes to retain that ownership, then you can be granted the right to use the IP by way of an ‘IP licence’. Licensing is common with photography and you will often see images being licensed by an owner to multiple users through websites such as Getty Images. If you are using someone else’s IP that you don’t have the rights to use, then the owner will be able to take legal action against you which may leave you financially exposed. In general, if someone is employed by an organisation then the law states that any IP created during the course of their employment will automatically lie with the employer, unless there is an agreement to the contrary. However, for non- employees such as locums or consultants, the IP will typically remain with that individual.
You should always carefully consider if you have the actual rights to use IP and if not, how you can go about obtaining such rights. If you have an image on your website, have you been granted the rights to display it? If a consultant has written an article for you, have they given you the rights to use this online or in print? If you are developing a website, has the web developer granted you full rights to utilise this as you wish in the future? Don’t let simple mistakes like this potentially affect your practice further down the line and cause complications for you.