The very idea!

Consultants have intellectual property rights in their work. But sometimes they are asked to agree that their intellectual property rights belong to the client. They should never agree to this, or at least not without appropriate compensation – which may be difficult to assess.

The client does not need to own these rights in order to implement the project in question. Even if there is no copyright licence in the contract, enabling the client to copy the consultant's drawings and other documents, such a licence would nearly always be implied in a situation where the consultant has agreed to prepare the drawings and documents in return for a fee. (It is a moot point whether the licence would be implied if the fee is not actually paid).

So, ordinarily, the client would have the licence it needs, but that licence is confined to the purpose for which the documents were prepared – for a specific project. It is better for the licence to be stated in the appointment, as is still the norm, and its scope properly defined. Whether or not that licence should be irrevocable is also something that should be discussed. If it is to be irrevocable it should be made conditional on the consultant being paid all fees that are due. This condition should also qualify any licence given to a third party (for example, under a collateral warranty).

If, however, the copyright is given to the client, rather than merely being licensed for a particular project, the client is free to use the drawings and documents on other projects and prevent others (including the consultant himself) from doing so.

In which case, not only would potentially valuable rights have been given away, but the consultant would have to seek and perhaps pay for a licence from the client (or anyone to whom the client may in turn have passed on these rights) to be able to use the fruits of his or her own skill and labour.

Consultants are increasingly aware of the potential value of their intellectual property, particularly in these competitive times, when some original thinking may be what distinguishes one consultant from another. They are therefore conscious of the need to protect this property from exploitation by others, whether as a result of signing an ill-advised agreement or otherwise.

If the copyright is given to the client, the consultant would need a licence from the client to use the fruits of his labour

What sort of intellectual property rights are particularly important to consultants?

Copyright, obviously, which will subsist automatically in most documents and drawings produced by a consultant and will belong to that consultant.

Inventions can be protected by a patent, but a patent has to be applied for and may not be granted – and, in any event, it is usually much more than original inventions that consultants need to protect.

There are design rights, but these apply to manufactured items rather than to the kind of structures that consultants in the building industry produce.

Apart from copyright, the right that is likely to prove most useful in protecting intellectual property in the building industry is confidentiality. Copyright is not always sufficient to protect a consultant's most valuable work. Copyright may protect the particular expression of ideas and concepts in a drawing or report, but not necessarily the ideas and concepts themselves. Another party may be able to take information from a drawing or document or make use of it in other ways without actually infringing the copyright in it. Thus the ownership of copyright in the drawing or document may be insufficient by itself to protect all the skill and labour embodied in it.

However, work that cannot be protected by copyright may be protected by confidentiality, though how this is done is another matter.