united-kingdom employment work-for-hire
What should a contract contain to protect an employees rights to work on unrelated side projects in their free time
<p>A typical IP clause in an employment contract says that
works created <em>&quot;during the course of your employment&quot;</em> belong to your employer.</p>
<p>This is essentially <a href="https://law.stackexchange.com/questions/86128/why-do-employment-contracts-need-a-clause-to-cover-work-for-hire">echoing the <em>&quot;work for hire&quot;</em> </a> principle in UK employment law.</p>
<p>The notion of <em>during the course of your employment</em> looks to be <a href="https://law.stackexchange.com/questions/49396/in-the-uk-what-does-during-your-employment-mean">open to interpretation</a>.</p>
<p>It seems to mean:</p>
<ul>
<li>while you are on company time</li>
</ul>
<p>but it can also mean:</p>
<ul>
<li>while you are employed to do something of a particular nature for us
you can only do it for us.</li>
</ul>
<p>I am explicitly concerned about software development, which falls under copyright law in the UK.</p>
<p>Many software developers have several side projects which they want to keep independent from work for their employers.</p>
<p>An oft quoted example is that its okay for you to do something completely different like write a novel but not okay for you do something similar to your employer, like say software development.</p>
<p>There are many kinds of software development. Some which might overlap with work for an employer and some that might not. Before everything was software this was less recognised but it could still be an issue.</p>
<p>Further as many are now in remote / flexible working environments, It is less clear which hours are &quot;employee hours&quot; and which are &quot;company hours&quot; unless someone keeps a very strict logbook (which is desirable and challenging by not impossible).</p>
<p>It is also assumed that you would keep your work on an entirely separate computer system from your employers.</p>
<p>I have heard of many contracts which unfairly favour the employer, for example:</p>
<blockquote>
<p>Any rights in Intellectual Property belong to the Company. This will
apply whether you make,  discover or create Intellectual Property in
the course of the duties of your employment, on  the Company premises,
at home or elsewhere, and whether you carry out the work in the
Company’s time or in your own time.</p>
</blockquote>
<p>This is clearly a red flag which needs to be negotiated if you care about your side projects.</p>
<p>If you successfully negotiated away the &quot;or in your own time&quot; clause would evidence of that negotiation be sufficient to demonstrate the intent of the contract as in the employees favour?</p>
<p>This <a href="https://techblog.bozho.net/amend-contract-allow-side-projects/" rel="nofollow noreferrer">example</a> suggests:</p>
<blockquote>
<p>Products resulting from the Employee’s duties according to the terms
of employment – individual or joint, including ideas, software
development, inventions, improvements, formulas, designs,
modifications, trademarks and any other type of intellectual property
are the exclusive property of Employer, no matter if patentable.</p>
</blockquote>
<p>This does not explicitly mention an employees right to their own side projects.
Is it sufficient?</p>
<p>Is an extra clause explicitly stating your rights to side projects necessary?</p>
<p>Does anyone have an example of contracts that provide some kind of explicit protection for employees own work (perhaps like the CA law) or where this has been negotiated successfully?</p>

<blockquote>
<p>Is an extra clause explicitly stating your rights to side projects necessary?</p>
</blockquote>
<p>No. The samples you provide already contain semantics to limit the scope of the clause to the &quot;duties or terms of the employment&quot;.</p>
<p>In the first sample clause, the element of &quot;<em>carry[ing] out the work [...] in your own time</em>&quot; is premised on &quot;<em>the course of the duties of your employment</em>&quot;. The clause reflects awareness that the employee might do work in his free time, but only the IP pursuant to the duties of employment becomes employer's IP.</p>
<p>The interpretation that &quot;<em>whether you carry out the work in the Company’s time or in your own time</em>&quot; encompasses any and all work regardless of being within the scope of <em>duties of employment</em> is wrong because it purports to treat the conjunctions &quot;<em>and</em>&quot; and &quot;<em>or</em>&quot; as synonyms. This position contravenes the principle formulated in <a href="http://www.oneclubofjusticides.com/p/restatement-second-contracts.html" rel="nofollow noreferrer">Restatement (Second) of Contracts</a> at §203(a), and which most likely has its equivalent under UK law: &quot;<em>[A]n interpretation which gives a[n] [...] effective meaning to <strong>all</strong> the terms is preferred to an interpretation which leaves a part [...] of no effect</em>&quot; (emphasis added). Treating &quot;and&quot; and &quot;or&quot; as synonyms inevitably renders one of these conjunctions without effect.</p>
<p>The second clause is more straight-forward because it hardly delves in the alternative circumstances under which an employee might perform work. The clause unequivocally provides that it refers to &quot;<em>[e]mployee's duties according to the terms of employment</em>&quot;.</p>
<p>It is important to ensure that other language in the contract does not supersede the rationale developed here, though. For instance, some crafted definition of &quot;course of employment&quot; could lead to a different conclusion, and hence the need to clarify any intended exceptions for side projects.</p>

<h2>Something like “The employee's right to work on unrelated side projects is protected”</h2>
<p>Contracts aren’t complicated: say what you mean.</p>
