Legal Insights: When your blog might not be your blog…

It is quite common for employees to have personal blogs which are related to the job they do. For example, someone who works for a fashion-house may also enjoy blogging about fashion; or someone who works for a technology company may have a personal blog dealing with technology issues.

The blog might openly give details of where someone works and what their role is there. Depending on the quality and audience for the blog, it might be something which gives extra kudos and publicity to the company, even though it is being done outside of work.

But tricky situations can occur when an employee leaves their job, perhaps even moving to a competitor, and the former employer doesn’t want to see the blog go because of its positive brand contribution. In a situation on which we advised recently, we determined that there was a good argument that the employee owned the IP rights in the blog.

In that particular case, the contractual terms of the employment were in accordance with the relevant UK statutory provision which provides that copyright in works made in the course of employment automatically vests in the employer. Our view was that the employee had probably not made the blog materials during the course of his employment since:

  • the blog was not part of his duties (in fact the blog had begun prior to his employment),
  • the employer had established a corporate blog to which the employee contributed separately,
  • the material used for the personal blog was generic and not related to the employer;
  • the employer controlled the corporate blog but not the personal blog; and
  • the employer had insisted on the personal blog containing a statement that the views and opinions expressed by the author were not necessarily representative of the employer’s views.

Some decisions are straightforward. For example, if a lawyer was to write a thriller it would be evident that the novel-writing could not be said to have been performed during the course of the employment.

However, where the end-product is closely connected to the subject-matter of the employment, things become less clear. There are two notable case law decisions in this area:

  • An employee was found to own the copyright in the lecture notes of public lectures on topics of relevance to his work which he had delivered whilst being employed. The court held that the delivery of lectures was not part of his employment.
  • Despite the fact that a fellow member of staff had typed up the medical guide, the guide had not been produced in the course of the employee doctor’s employment. Although it may have been a “useful accessory” to his work it was not a necessary part of it.

Israel has adopted a similar approach to that of the UK. As in the UK, it seems that the question of ownership will depend on a factual analysis of the scope of the employment relationship. While the “blog case” we advised on was pretty clear-cut, the cases highlighted above demonstrate that where an employee/employer is aware of potential problem items it is advisable to make specific provision in the employment contract. If IP rights are particularly relevant to the employment it is advisable to make general provision for IP rights in some form, rather than relying solely on the statutory provision. When both sides understand exactly what they are getting into at the outset expectations are more realistic and problems often averted.

Hadie Cohen is a senior associate in Asserson’s Business Law team, specializing in employment issues.