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Last week’s blog highlighted the absence of law clarifying the status of interns in Ireland. For IP-rich organisations, this may impact their ability to commercialise the fruits of their labour where interns may have created (jointly or alone) important intellectual property.

Where does this arise?

Organisations are often satisfied getting interns to sign simple non-disclosure / confidentiality agreements, as they can’t foresee them creating any intellectual property during their internship. However, if an intern creates and/or develops any IP a confidentiality agreement is unlikely to catch this and consequently the IP may not belong to the organisation.

It’s not uncommon for early stage tech companies to use student software developers, graphic designers and similar as a form of low-cost labour, while students benefit from working on real projects. However, the uncertain legal status of interns means that failing to secure IP created in this work could prove costly for a start-up where future investment is based on the start-up owning all of their IP.

Who’s the first owner of IP?

The four principal IP rights are trade marks; industrial designs; copyright and patents. Each of these rights has statutory protection in Ireland.

Generally, save for certain exceptions, the person who creates IP is the first owner of it and can decide how it’s used, if at all. This includes contractors. However, one of the exceptions to this rule, under Irish copyright, industrial designs and (less clearly) patent laws, is that any work made by an employee in the course of employment belongs to the employer, unless otherwise agreed. Therefore, the two crucial factors in an employer/employee IP dispute are (1) whether the employee is in fact an employee; and (2) whether the works were done in the course of employment.