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Locking down your IP in a time of Covid-19

30 Apr 2020

The switch from “on premise” to remote working brought about by Covid-19 has been both immediate and impressive. However, in the process, have you overlooked protection of your business’ intellectual property (IP)?
 
We outline some steps you can take to better protect your IP in a time of Covid-19.

Know what you have 

Covid-19-imposed, quieter times may provide an opportunity to get a handle on your IP.  A basic IP audit will help you build a better IP protection regime.
 
Consider matters such as:
  • What IP do you create or own? For example: copyright, trade marks, patents, databases etc?  
  • What’s capable of registration / what’s registered and when is it due for renewal? 
  • Who creates it - directors, employees, freelancers/contractors etc? 
  • Where are details logged and, if appropriate, the relevant IP stored? 
  • What’s “licensed in” and what’s “licensed out”, and on what terms? 

Build your walls high 

Successful remote working is dependent on technology-driven solutions. Look to adopt “best in class” for your given budget and don’t overlook disaster recovery/business continuity.

Key areas to address might include:
  • Implementing or upgrading VPN access. VPNs allow you to better keep proprietary information on your network. 
  • Limiting access: consider what your staff need to do their job and allow only access to that.
  • Setting controls: look to put controls on access to cloud storage solutions (eg Google Drive, Dropbox, etc.) and prevent printing.
  • Monitoring use of your IT systems: UK law allows monitoring of remote staff but the regulatory framework is complex so do take appropriate advice before adopting such measures. 

The word can be as mighty as the sword 

Now’s a good opportunity to review documents key to protecting your IP. Give consideration to: 
  • Employment contracts - do you need to bolster the position around IP ownership, confidentiality, and non-compete/non-solicitation? For overseas workers, you must take local advice on their contracts.
  • Contracts for services -  your contracts must include appropriate IP and confidentiality provisions. Not IP-related but do you need to address the new IR35 tax rules due in 2021?
  • NDAs - do you have the right types of NDA and do you know which one to use in a given situation?
  • Employment handbook/policies – do you need to update your employment handbook and/or IT usage, social media use, and data protection policies amongst others?

Train and train again 

Lockdown need not mean an end to training. Use of an online learning platform may allow you to deliver training, monitor training compliance and evaluate your staff’s IP knowledge.  
 
Training should not be viewed as a “one time” activity: keep training and reminding your employees why intellectual property should be protected; what needs to be protected; how to protect it; and the potential consequences for not following the rules. 

Remember your staff remain part of your team

Remote working leads to the loss of community, camaraderie, and common purpose. When staff feel like they are a part of a team and share a common purpose they are less likely to betray you/your business by misusing your IP. You should schedule regular team meetings, preferably by video conference, and actively reach out to employees (including those who are furloughed) to ensure they feel like valued team members.

Be prepared to put the gloves on  

If you do suffer an IP issue, make sure you know who to contact both within and outside your business.  You will need an internal team at the ready to stem any further “loss” and you will need to engage with your lawyers to see what action may be taken against rogue staff and/or those infringing your IP. 
 
Remember, you will need to act quickly if you think a staff member is misusing your IP. If you delay, you may not be able to obtain an injunction to prevent further misuse - the English courts have found a delay of two months in bringing a claim was unreasonable.
 
Our TMT team, which comprises both non-contentious and contentious lawyers, are on hand to help you better protect your IP (and not just during the COVID-19 pandemic).  
 
For more information, please contact John Yates.
 

Further reading

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