Employment Law and Intellectual Property Law: Attempts to Resolve Issues at the Points of Convergence

Abstract

This chapter introduces a collection of published articles and book chapters from a range of jurisdictions in the area of employment law and intellectual property law. The chapter explains that the collection adopts a thematic approach through the lens of varied perspectives: contextual, historical and theoretical. The overall contextual perspective is that of intellectual property rights in both public (government and universities) and private sector employment. A separate section is dedicated to historical perspectives on ownership of employee inventions to reflect the extent of classic scholarship on this topic. However, historical perspectives also appear more broadly within each theme, especially where they present and analyse the legal, theoretical and practical issues that necessitated and catalysed change. Although there is extensive theoretical scholarship that examines justifications for each of the different forms of intellectual property, the research uncovered limited theoretical analysis of the legal principles that apply at the union of employment law and intellectual property law. Nevertheless, a collection of this kind is incomplete without some theoretical reflections. This collection is enriched by the contributions of both employment law and intellectual property law scholars. The authors’ principal discipline has a direct impact on the selection of issues, the point from which they commence their analysis, the perspective they take and the themes that interest them. In broad terms, an intellectual property scholar might frame the questions and conduct the analysis from the perspective of the creation of intellectual property rights during employment with particular attention to patents, confidential information and to duties of employment. What balance of rights between employer and employee will most effectively and efficiently create incentives for production of knowledge that has the relevant attributes for protection? An employment law scholar, on the other hand, might frame the questions from the perspective of safeguarding the employee’s ability to continue to use her skills and knowledge after leaving employment to work elsewhere. Their focus may not be on the creation of intellectual property rights during employment but on the evaluation of restraints that an employer might impose under contract law on departing employees. Employment law scholars in particular might question the extent to which contractual restraints undermine the balance that intellectual property laws seek to maintain between monopolised information and the public domain. They may be concerned to constrain the parameters of what knowledge might have protection as a trade secret and support the imposition of restraints on a departing employee. This chapter considers the points of convergence and the attempts to resolve the issues that arise at those points. The chapter takes the reader on a personal voyage of discovery across the literature and hopefully entices scholars in each field to delve further into each theme, reflect on their own understanding of the connections between employment law and intellectual property law and add to the existing body of scholarship.