Perspectives from Intellectual Property, Labour, Competition and Corporate Law
Edited by Marilyn Pittard, Ann L. Monotti and John Duns
Chapter 10: The innovative worker: genius, accidental inventor or thief?
In Australian labour and employment law, both the collective relationship between groups of workers and their employer, as regulated by the legislative framework, and the individual relationship between an employer and employee, governed by the contract of employment, determine, or have the potential to affect, the relative rights and entitlements of innovative workers and their employers. This chapter focuses first on that potential in the collective relationship in Australia, but secondly it particularly addresses what we learn from the contract of employment in relation to employee and employer ownership of inventions in Australia and the impacts of the vagaries of the common law on employee/contractor status. The chapter will explore issues through the prism of the ‘genius’ inventor, the ‘accidental inventor’ and the ‘thief’. The genius inventor may be thought of as an inventor who is specifically engaged to invent; whilst the accidental inventor is one who unexpectedly or accidentally makes an invention whilst employed. The thief is an employee who steals knowledge or an invention belonging to the employer (but not necessarily in a criminal sense of being a thief, although there may be theft of materials or documents), and who additionally may attempt to use it in competition with the original employer. The Australian labour law and employment law perspective on innovation in employment relies essentially on the individual contractual relation- ship between employer and employee. The traditional common law relating to the individual relationship provides the legal principles, albeit that these principles are not always easy to apply in different and contemporary factual circumstances.
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