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Web development is becoming more critical for businesses as they take their operations online. As a web developer, increasing demand for functional business websites is advantageous for your own business. Your duties can be broad, but you will most likely be creating new works for your clients to meet their needs. Consequently, creating these new products can raise intellectual property (IP) concerns. You will likely be creating different kinds of IP for your clients. As a result, you need to be clear about who owns that IP and what you can do to protect your own interests. Therefore, this article will go through various steps you should take to protect your IP in New Zealand.

1. Understand How IP Works

IP can refer to new or original innovations and creations of the mind. You can own IP like physical property. Subsequently, IP owners have various rights regarding:

  • commercialising their IP;
  • using their IP; and
  • preventing others from using or selling their IP.

A large part of the websites you develop for your clients will include IP. Therefore, you need to make sure you have a solid understanding of how IP works in New Zealand. For example, when you create the following, you will likely engage IP rights:

  • software;
  • webpages’ physical appearance and design;
  • website content;
  • business branding, such as slogans or logos; and
  • website images.

Depending on the parties involved, there will be different IP rights at play, including:

  • your own;
  • your clients’; and
  • third parties’.

For instance, as a literary work, your code will have inherent copyright protections that you can access as the code’s creator. If someone tries to copy your code, you may have legal options to prevent them from doing so. Therefore, you want to figure out what that copyright protection can grant you and where it may fall short.

Once you understand how your business’ IP works, keep this in mind whenever drafting contracts with clients and partners. Furthermore, in any written development agreement, ensure that you have a clause addressing IP in the relationship. You want to protect your valuable IP, and having this understanding will help that immensely.

2. Register Important Business IP

Once you have identified critical IP within your business, you should register these where you can. IP is registered through the Intellectual Property Office of New Zealand (IPONZ). IP rights that you can register include:

  • trade marks;
  • patents; and
  • designs.

For instance, trade marks protect signs that can represent your business. Therefore, you should register trade marks for your business name or logo. Doing this can prevent clients from using your name or logo on their branding without your permission.

If you deal with overseas clients, then you should also register or establish IP protections within those countries. Most IP rights only apply to the country you register them in, so trade mark or design registration in New Zealand may not protect you in other countries. Once you register these rights, you can clearly prove your ownership. Consequently, clients or other parties cannot pass them off as their own without inviting infringement claims from your business.

3. Clearly Establish IP Ownership With Your Clients

Furthermore, in any contract that you sign with a client, clearly set out all IP relevant to the relationship that you already own. You may know this as ‘background IP’. Background IP refers to pre-existing IP, which can include batches of code that you use for multiple clients, and:

  • website interfaces;
  • measurement/administration tools;
  • layouts; and
  • templates.

Make it clear in any contract that you retain your ownership of your background IP so that you can keep using it as your own. Distinguish this from the client’s IP, including the content they supply you with to make the website, such as customer testimonials and their branding.

A further aspect that you need to consider is the commissioning rule. This rule is part of copyright law that where someone commissions your business to create a product for them (such as a website) for a fee, and then they own all IP that you create for that commission. This fact may cause issues if you develop new IP, such as code, that you want to reuse for your business. 

You can negotiate an agreement with your client that overrides this rule if you want to retain ownership of new copyrighted works that you create. As a result, you can choose to licence out your IP for clients to use while still retaining specific IP ownership rights. However, the success of this will vary according to what the client wants out of the relationship.

No matter how you decide to determine IP ownership in your web developer business, it is best to set this out before starting work. Otherwise, you may face costly IP problems later on. 

Key Takeaways

As a web developer, the content that you create for clients will include IP and engage IP rights. Therefore, before starting a contractual relationship, it is best for all parties to set out and negotiate their IP expectations. If you would like more information or help with your IP as a web developer, contact LegalVision’s IP lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is copyright?

Copyright is an inherent intellectual property right that protects original works. These works can be broad, including literary, artistic, and musical works.

Does code or software qualify for copyright protection?

Under New Zealand copyright law, code itself qualifies as a literary work because someone used their skill and knowledge to write it. This rule will usually apply to software as well, but this can be more complicated according to the makeup and complexity of the software itself.

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