There is a disinformation gap in labor relations between employers and employees regarding the regulation and protection of Intellectual Property assets that organizations may have, particularly those that desire to be safeguarded by their authors.
Employers and employees must be aware of the appropriate legislation in order to avoid dangers that could harm both parties. In Mexico, the law protects and promotes the interests of both employers and artists by granting them rights and responsibilities. This aids companies that do not have measures in place to protect their intellectual property rights from hazards and infringements.
When is it appropriate to consider an employee to be the owner of an Intellectual Property right? When an employee makes or creates an innovation, or when he participates and collaborates in the creation and/or development of a distinguishing sign, we might consider him to be an Intellectual Property right holder. When somebody develops literary and/or artistic works, he can also be an author and a copyright holder.
The above always under the subordination of his employer. However, Mexican laws include not just employee rights but also obligations, such as those relating to access to confidential information held by the employer, which the employee is required to keep discreet because the information may be regarded a trade secret.
The regulation
In Mexico, the rights of the creator of the work, in this case the employee, and of the person who commissions it, the employer, are mainly regulated by the Federal Copyright Law (“LFDA”) and the Federal Labor Law(“LFT”). n both laws, the legislator makes a distinction between (i) works for hire or collaborative works and (ii) inventions derived from a labor relationship.
In relation to the first, it is established that the employer has complete discretion over who owns the Economic Rights to the invention, including the Moral Rights to carry out the release and obtention of earnings. When a relationship is established through an individual labor agreement, on the other hand, it is assumed that the Economic Rights will be shared equally by the employer and the employee. These rights will be vested in the employee if no agreement has been reached.
The Mexican law governing Industrial Property Rights that may arise as a result of a labor connection is not particularly comprehensive. Regarding inventions and trademarks there is no express regulation in the Federal Law for the Protection of Industrial Property (“LFPPI”), so these must be governed under the individual labor agreement.
In addition to the foregoing, several types of agreements regulated by civil law, such as the service provision agreement or the fixed pricing agreement, can be used to regulate both industrial creations and distinguishing signs.
Employees are required by both the LFPPI and the LFT to keep information that is considered a Trade Secret secret. They also consider that the employer has a responsibility to tell its employees on the sensitivity of the information and, if necessary, to handle and retain it with restricted access.
The employee’s failure to maintain secret could result in a variety of consequences. Labor-related sanctions might include the early cancellation of a labor agreement with no consequences for the employer. While the non-compliance of Industrial Property matters can be sanctioned through: (i) the filing of an administrative infringement action, which may result in the imposition of a fine, the amount of which will depend on the severity of the conduct, and/or (ii) the filing of a criminal complaint, since the unlawful use of a Trade Secret constitutes a crime.
Nowadays, it is impossible to control when and how an employee creates an invention, and Mexican law makes no provision for limiting an employee’s ability to create inventions because they can occur at any time; for example, an employee may not have been hired with the intention of creating inventions, but he may solve a problem through an invention.
In this situation, the employee will be the proprietor of the innovation if he does not use corporate resources; however, if he does use company resources, the employer will hold the rights to the idea.
Intellectual property is ingrained in a variety of economic sectors and is critical to the growth of numerous enterprises. The pharmaceutical sector, which deals with the development of vaccines, and the entertainment industry, which deals with not just Copyrights but also Related Rights, are two of the most important industries in which Intellectual Property is involved.
As a result of the foregoing, it is critical to establish specific clauses for protecting Intellectual Property that may arise as a result of the labor relationship, whether in individual labor agreements or through specific contracts, such as non-disclosure agreements, in order to avoid any liabilities or risks.
You can see a list Mexico IP firms here