IP Assignment
Also known as: Copyright Assignment, IP Transfer, Deed of Assignment.
What is IP Assignment?
An IP assignment is the transfer of ownership of intellectual property rights — typically copyright, patents, trade marks or designs — from one party to another. Under South African law, copyright and trade-mark assignments must be in writing; patent and design assignments require written form and registration.
Drafted and reviewed by
Attorney & Founder, My-Contracts.co.za · Legal Practice Council of South Africa (LPC F17333)
Definition and context
An intellectual property (IP) assignment transfers ownership of IP rights from assignor to assignee, distinct from a licence (which grants use rights while ownership remains with the licensor). Each category of IP has its own formalities. Copyright is assigned under section 22(3) of the Copyright Act 98 of 1978, which requires the assignment to be in writing and signed by or on behalf of the assignor. Section 22(1) permits assignment of the whole copyright or of specified acts falling within copyright (reproduction, adaptation, public performance, broadcast, distribution), and of specified periods or territories. Trade marks are assigned under section 40 of the Trade Marks Act 194 of 1993, requiring a written assignment and recordal on the Register at CIPC to be enforceable against third parties. Patents are assigned under section 60 of the Patents Act 57 of 1978 and designs under section 31 of the Designs Act 195 of 1993, both requiring writing and registration.
A critical and frequently misunderstood aspect is the employment context. Section 21(1)(d) of the Copyright Act vests first ownership of copyright in works created by an employee in the course of employment in the employer automatically. No assignment is needed for employee-created works. For contractors, however, section 21(1)(c) vests ownership in the contractor unless the contract expressly assigns copyright to the commissioning party. Commissioned works limited to photographs, paintings or portraits of persons, engravings, sound recordings and films fall within section 21(1)(c) and require payment and commission to vest in the commissioner; software, architectural designs and other literary/artistic works fall under section 21(1)(a) and remain the contractor\'s property absent express written assignment. This trap routinely surfaces in disputes between startups and their founding developers.
A well-drafted IP assignment addresses scope (all IP or specific rights), consideration, warranty of title and non-infringement, assistance undertakings (signing further documents, testifying in infringement proceedings), moral rights (in copyright — non-assignable under section 20 but waivable), and governing law. In transactions involving employee-created IP, a belt-and-braces approach combines the section 21(1)(d) default with an express written assignment in the employment contract, plus a present assignment of future-created works. Moral rights (paternity and integrity under section 20) cannot be assigned in South Africa, but a waiver is generally enforceable.
Where this term lives in law
Copyright Act 98 of 1978
Sections: 20, 21, 22
Governs copyright protection and ownership of literary, artistic, musical, and digital works in South Africa.
Frequently asked questions
Who owns copyright in work created by an employee?
Section 21(1)(d) of the Copyright Act vests ownership in the employer by operation of law, provided the work was created in the course of employment. No written assignment is required, though one is good practice for evidential certainty.
Who owns copyright in contractor-created work?
The contractor, unless the contract contains an express written assignment compliant with section 22(3). Commissioning payment alone does not transfer copyright for software, designs or most literary/artistic works.
Can future-created IP be assigned?
Yes. A present assignment of future copyright is permitted in South African law (Bendigo Technology v Eskom 2018 JDR 1121 (GJ)), subject to the writing requirement of section 22(3). It crystallises when the work comes into existence.
Can moral rights be assigned?
No. Section 20 moral rights (paternity and integrity) are personal to the author and cannot be assigned. However, a waiver of the right to object to specified acts is recognised as enforceable.
Must a trade-mark assignment be registered?
The assignment is effective inter partes on signature, but must be recorded on the Register at CIPC under section 40 of the Trade Marks Act to be enforceable against third parties and to allow the assignee to sue for infringement.
Contract templates using this term
3 templates reference IP Assignment.