IP and confidentiality clauses in a contract

Ownership, licence and the gap between them

An IP assignment transfers ownership outright, a licence grant leaves ownership where it was and permits a defined use, and the difference decides whether a client can resell, modify or register the work later. Background IP is the material a supplier brought to the job and keeps, which is usually its templates, libraries and methods, and the clause exists so that handing over a deliverable does not quietly hand over a business. Work for hire is the United States mechanism for the same result, and moral rights consent covers the personal rights of a creator that an assignment does not move.

Keeping information in

The confidentiality clause defines what counts as confidential, who it may be shown to, and how long the obligation runs, and most disputes turn on the definition rather than the promise. Trade secrets sit alongside it because protection depends on actually keeping the information secret, so the clause has to require the steps that make that true. Return of materials closes the loop at the end of the engagement, and survival wording keeps the obligation alive after the contract ends. Publicity and non disparagement round out the group by covering what each side may say about the other in public.

How to use these pages

Decide first whether the client needs to own the work or only to use it, because that single choice determines whether you are reading the assignment page or the licence grant page. Suppliers who reuse their own components should read background IP before agreeing to any assignment. Creators should read moral rights consent, since it is separate from ownership and cannot be assigned in every country. Each page carries sample wording with numbered sub clauses, the usual variants and the negotiation points, and says where local law limits what the clause can achieve.

Every page in this collection

• Background IP clause

  Almost nothing is built from nothing. A development team brings libraries, a studio brings templates, and a consultant brings models, so an assignment clause with no background carve out promises something the maker cannot deliver.

• Confidentiality clause

  Inside a services or employment agreement, this clause is rarely read until somebody leaves. Its real drafting questions are about how it interacts with the other clauses rather than about the duty itself.

• Feedback clause: who may use the suggestions a customer makes

  Software suppliers ask customers for ideas constantly, then build the good ones into a product sold to everyone. The feedback clause exists so that nobody later claims a share of a feature because they mentioned it on a support call.

• Intellectual property assignment clause

  Commissioning work and owning it are different things, and the default under Australian copyright law favours the maker rather than the payer. The clause that changes that has to be in writing and signed to have effect.

• Licence grant clause

  A licence that names only the work and the price has left five of the six questions open, and each of them decides something the parties will care about later. Most licensing disputes are about a term the grant never mentioned.

• Moral rights consent clause

  An assignment of copyright moves ownership and leaves the author's personal rights untouched. A client that edits, crops or publishes work without a byline is dealing with those rights, whether or not anybody planned to.

• Non disparagement clause

  The clause is easy to agree and easy to draft too widely. A promise that covers truthful statements to a regulator, a court or a health and safety inspector is a promise that will not hold and should not be asked for.

• Open source software clause: what a developer promises about code it did not write

  Almost every modern application is mostly open source components glued together with custom code. The clause does not stop that, it makes sure the client knows which licences arrived with the software and that none of them carries an obligation the client cannot live with.

• Publicity clause

  Almost every agency, studio and consultancy sells on who it has worked for, and almost every standard confidentiality clause quietly forbids that. The publicity clause is where the two are reconciled, before anybody has published anything.

• Return of confidential information clause

  This is the clause most often drafted as a promise nobody can keep. Asking a business to delete every copy including backups is asking an IT team to do something its systems were built to prevent.

• Trade secrets clause

  A three year confidentiality tail is sensible for pricing and forecasts and useless for a recipe. Separating the two lets one obligation expire on schedule while the other runs for as long as the secret lasts.

• Trademark licence clause: using a brand without owning it

  A logo on someone else's shopfront, packaging or website says the owner stands behind what is sold there. The licence clause decides how far that promise reaches and what the owner can do when the licensee lets the standard slip.

• Work made for hire clause

  The phrase appears in contracts all over the world and has legal effect in only one of them. Used outside the United States it is decoration, and used inside it without a fallback it fails more often than it works.