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Intellectual property (IP) is any intangible asset that's created from human intellect, such a logo, a written article, some computer code, an invention or trade secrets.
If you're planning on buying, selling or licencing IP, you'll need an intellectual property agreement.
This guide explains what to include in an intellectual property agreement and shows you where you can find IP agreement templates for free.
There are two types of intellectual property agreements: The assignment agreement and the licence agreement.
An intellectual property assignment agreement is a legal contract that transfers ownership of IP from one party (the transferor) to another party (the transferee).
The transferor releases all rights to the IP and assigns the rights to the transferee.
An intellectual property assignment agreement gives the transferee complete control over the IP. They can copy it, modify it, publish it, distribute it and destroy it.
An intellectual property licence agreement is a legal contract that gives one party (the licensee) usage rights for some intellectual property, but not ownership. The other party (the licensor) retains full ownership of and some control over the intellectual property.
An intellectual property licence agreement defines what licensees can and can't do with the intellectual property. For example, a licensee may be allowed to use it but not modify or copy it.
You should use an intellectual property assignment agreement when you want to sell complete ownership of some IP. For example, when a graphic designer designs a logo for a client, the designer typically transfers complete ownership of the design to their client upon completion of the design.
You should use an intellectual property licence agreement when you want to sell usage rights for some intellectual property but want to retain ownership. For example, software developers typically use intellectual property licence agreements to allow others to use and benefit from their software without giving up ownership.
A non-disclosure agreement is a contract between two parties where one agrees not to disclose certain confidential information owned by the other party to anyone.
A non-disclosure agreement helps protect one party from financial loss due to their confidential information being shared by the other party.
Unlike a non-disclosure agreement, an intellectual property agreement isn't focussed on keeping intellectual property secret. An intellectual property agreement grants usage or ownership rights.
For example, an intellectual property assignment agreement should be used when one business purchases another business. The purchaser would want to legally gain ownership of the business's trade secrets.
Australia has no laws explicitly describing what an intellectual property agreement must include. However, the agreement is a contract, so it must follow the principles of contract law.
Here are some elements that any intellectual property agreement should, and shouldn't, include.
Intellectual property agreements are only effective under the law specified in the agreement.
An intellectual property agreement is also only effective for a limited timeframe for certain types of IP. For example, regardless of what the agreement says, under Australian law, a trademark is only owned for ten years unless ownership is renewed with IP Australia.
Intellectual property law is complex. Penalties for breaching intellectual property laws are typically very high. So, you should seek legal advice when assigning or licensing intellectual property.
You should also keep in mind that an intellectual property agreement alone is not always sufficient to make an assignment of intellectual property legally binding.
To assign ownership of certain types of intellectual property in Australia, such as trademarks and patents, you'll need to file an application with IP Australia. An assignment of these types of intellectual property won't be official without IP Australia's lawyers handling the transfer, even if both parties signed an intellectual property agreement.
2019 amendments to The Competition and Consumer Act 2010 (Cth) now prohibits certain transfers of intellectual property that are considered anti-competitive.
There are a few free resources online that can help you write your own intellectual property agreement.
Below, we've compiled a list of sites that offer intellectual property agreement template free. Answer a series of questions to generate a bespoke intellectual property agreement that's relevant to your situation.
Then, have a lawyer look over any document produced by these sites to ensure it's suitable for your situation.
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