Intellectual Property Law has quite detailed regulations on intellectual property rights (“IPRs”) as well as acts of IPRs infringement so that enterprises can identify each occurrence of infringement that has the potential to affect their legitimate interests. However, if being placed in the employment relationship between the Employee and the Employer, it seems that the violations of the Employees against the IPRs of the Employer mainly focus on IPRs regarding copyright, copyright-related rights, and trade secrets – one of the objects protected under industrial property rights. Because the law does not require registration for the above-mentioned objects, the application of security measures to the above-mentioned objects is one of the core factors in establishing and exploiting industrial property rights in the business activities of enterprises.
In some cases, with the Employees’ position, they have opportunities to access or illegally copy or disclose these objects to others despite the fact that these objects are owned by the Employer. The impact of the Employees’ IPRs infringement is unpredictable because for many enterprises, IPRs are the most valuable assets in an enterprise, deciding the existence or termination of its operations. To overcome this, when the Employee infringes the IPRs of the enterprise, the Employer can apply the dismissal discipline to the Employee. However, this seems to be just a temporary handling measure of the Employer, not a long-term strategy to protect its interests. Because the business activities of the enterprise may be severely affected, or the enterprise may have to cease operations when the entire value of the enterprise’s assets as IPRs have been provided to its direct competitors. So, what should enterprises do to protect their IPRs against the risk of being infringed by the Employees?
- Firstly, the enterprise should promptly carry out procedures for establishing IPRs to protect objects according to the provisions of Intellectual Property Law. For example, enterprises manufacturing goods with specific designs such as cars and motorbikes should register for protection title for industrial property rights to industrial design as soon as the designs of the products are formed. This will help to avoid the risks of the Employee providing to competitors when the product has not yet been registered for protection, leading the major losses.
- Secondly, when recruiting and contracting with an employee, the enterprise should agree and record in the contract that any intellectual property (IP) created by the employee in relation to their tasks is owned solely by the enterprise. This ownership remains valid beyond the termination of the employment relationship.
- Thirdly, enterprises should sign the following agreements with the Employees such as non-disclosure agreements, non-compete agreements. The non-disclosure agreement will clearly define the information that the Employee must keep confidential as well as record the method of management and use of such information. In practiceregardless of the term of a labor contract, when the Employee violates any content relating to commitment to information security, the enterprise has a basis to force the Employee to be responsible, including confidentiality obligations.
- Finally, enterprises should establish internal electronic communication policies, stating that all data and emails on company computers and systems are enterprise property. Employees must comply, allowing the enterprise to access and control these devices as needed. This policy aims to safeguard electronic documents and prevent unauthorized information transfer, especially of IPR-protected content, by employees to external storage or third parties. (such as copying from the computer to another storage device or to third parties, etc.).
In the current era of information technology and engineering development, IP has gradually become an important asset of enterprises, one of the factors that help affirm the position of enterprises themselves in the market as well as the foundation for the development of production and business activities. The protection of IPRs of enterprises accordingly is also facing many challenges. Therefore, enterprises should take the right approach and pay attention to the development of strategic measures to maximize the protection of their intellectual products and related legitimate rights.