Mark Goh & Paerin Choa | 8 min read | September 2020

We are moving from the industrial age to the intellectual age. Living in the intellectual age, we see the rise of the creative industries. Theatre, visual arts, cinema, TV, radio, music, publishing, computer games, new media, architecture, design, fashion, advertising, applied arts and innovations are all the more identifiable components in the creative industries.

We have seen how a good story can be given a new lease of life when it is adapted to diferent mediums. For example, a story starts its journey in publication, it may then get adapted to stage, screen or computer games. Design, fashion and innovation will lead to new products and new trends.

The creative industries are less tied to traditional assets like land, capital and intensive labour. Instead what you need is creativity, originality and ideas.

However ideas alone do not translate to business success. In my years of practice, I have noticed that many people share a common misconception that their ideas can be protected. Ideas are concepts that exist in the mind. As long as it exists only in the mind, an idea cannot be protected. An idea has to be expressed in a tangible form for an intellectual property (“IP”) to be created.

Although the creation of Intellectual Property Rights (“IPR”) does not protect your ideas totally, it gives you protection to some extent. The 4 main types of IPR are copyright, trademark, patent and confidential information.

Types Of Intellectual Property Rights

1. Copyright
Copyright in itself does not protect the idea but it protects the expression of the idea. Copyright protects the expression of the idea in tangible form like in writing, a recording, drawing or a computer program.

2. Trademark
These are used to protect your brand and to distinguish the products and services that you provide from your competitors. Trademarks also serve to protect the goodwill that your business have generated from the resources that are invested.

3. Patent
It is used by an inventor to claim ownership of an invention. The invention must be novel and cannot be obvious to industry peers.

4. Confidential Information
It is created by confidentiality or non-disclosure agreements. This IP does not protect the idea but gives you a cause of action against someone who steals your ideas after signing the agreement.

Creating the IP is only the first step. An IP in itself has little value. They only attain value by being successfully exploited. Some common forms of commercial exploitation are turning IPs into commercial products, licensing or an outright sale. When a business successfully exploits its portfolio of IPs, the business can generate income, create employment and hopefully, change the way we live and work. With the proper exploitation of IPs, we can witness how creativity breathes new life into production, commerce and entertainment.

Protect your business interests with these approaches
The Ministry of Manpower has clear rules against work pass holders and foreign domestic workers working for anyone except their employers at all times, while the Public Service Division has stated that “civil servants need to declare additional trade or work that draws income to ensure that there is no conflict of interest”.

When it comes to employees who are not work pass holders in a small company, however, the regulations are not as straightforward. Moonlighting is disapproved of generally under common law. Under the law, an employee owes a duty of fidelity and integrity to their employer. As such, “moonlighting”, which usually means being engaged in another job without the prior consent of the employer, is a breach of the employment contract.

If discovered, such a breach may allow an employer to elect whether to terminate the contract and/or make a claim against an employee for any loss or damage suffered as a consequence from the breach.

In addition to “moonlighting”, there is another concept called “non-compete”. It specifically addresses a situation where an employee obtains a freelance job and alternative employment from a competitor of the employer. Employees should be warned that even if there are no express clauses against “moonlighting” or “non-compete”, these obligations are imputed into the contracts.

However, these obligations are not imputed after the contract expires or is terminated. If you wish to prevent your employees from working for a competitor after the existing contract of employment has ended, you will need a lawyer to assist you in drafting a binding non-compete clause which the Courts will accept as fair and reasonable.

Protect Your Company’s Intellectual Property Assets
Strengthen the existing non-compete agreements with your employees by protecting your company’s intellectual property.

Do the necessary – register the trademark, copyright and/or patent and have the correct assignments in place to make sure that any processes, systems, inventions etc developed by the employees during business hours and using company resources belonging to your company, not to the employee who developed them on behalf of your company.