Intellectual property in a consultancy agreement

The most expensive mistake in contractor paperwork is the one nobody notices until the business is sold: the code, the designs, the content and the documents a contractor produced belong to the contractor, because nobody wrote down that they did not. An employee's work belongs to the employer by statute; a consultant's belongs to the consultant unless assigned in writing. The agreement has to assign the IP, with the formalities the law requires, deal with what the consultant keeps, waive moral rights and account for the third-party and open source material inside the work. This page explains the law and the drafting. I draft consultancy and contractor agreements for a fixed fee of £595, delivered in five working days.

Who this is for

Businesses in England and Wales engaging consultants and contractors to create software, designs, content, documents, products or processes, and consultants who want to understand what they are assigning and what they keep.

What matters in the intellectual property clause

Who owns what a consultant creates without an agreement

Under section 11 of the Copyright, Designs and Patents Act 1988 the author of a work is the first owner of its copyright, except where the work is made by an employee in the course of employment, when the employer owns it; a consultant is not an employee, so the consultant owns what they create for a client unless they have assigned it, and the client at most has an implied licence to use the work for the purpose it was commissioned, the scope of which is argued about afterwards. The same applies to design right under the Act and, with their own rules, to patentable inventions and registered designs.

The assignment and the formalities it needs

An assignment of copyright is effective only if it is in writing and signed by the assignor under section 90 of the Copyright, Designs and Patents Act 1988, and an assignment of future copyright under section 91 passes the copyright in works not yet created when they come into existence, which is what a consultancy agreement needs: an assignment, in the agreement signed by the consultant (and by the consultant's company and the individual where both are involved), of all present and future IP in the work created under it, with a further assurance clause requiring the consultant to sign any confirmatory document later; a clause that says the consultant 'agrees to assign' is a promise rather than a transfer, and the agreement should assign.

Pre-existing materials, know-how and the licence back

Consultants bring tools, templates, libraries, frameworks and methods they use for every client, and an assignment of everything they produce would hand the client the consultant's business; the agreement should identify the consultant's pre-existing materials and know-how, keep them with the consultant, license them to the client to the extent they are incorporated in the deliverables, for the client's use of the deliverables, and allow the consultant to reuse general skills, knowledge and techniques; where the client wants the consultant's reusable material too, that is a separate price.

Moral rights and the waiver

The author of a work has moral rights under section 77 and following of the Copyright, Designs and Patents Act 1988: to be identified as author, and to object to derogatory treatment of the work; they cannot be assigned but can be waived in writing under section 87, and a client that wants to edit, adapt and publish the work without attribution needs the waiver, which the agreement should contain. Without it the consultant can object to changes to a design, a text or a film that the client regards as its own.

Third-party and open source content

Work the consultant delivers may contain material the consultant does not own (stock images, fonts, music, libraries, data, open source code) and cannot assign, and the agreement should require the consultant to identify it, to have the licences needed for the client's intended use or to tell the client what licences it must obtain, and to warrant that the rest is original and does not infringe, with an indemnity for breach; open source components under copyleft licences need particular attention, because incorporating them in the client's proprietary software may subject it to the licence, and the consultant should have to disclose any such component before using it.

When IP passes and what happens if it does not

The agreement should say when the assignment takes effect: on creation, which protects the client, or on payment, which protects the consultant, with a licence to the client to use and test the work in the meantime; a consultant who assigns on creation and is not paid is a creditor, and a client that pays and is not assigned to has a licence and a claim. Where an engagement has already ended without an assignment, a short confirmatory assignment signed now cures the gap, and the agreement for future work should contain the assignment from the start; the absence of an assignment is the question every buyer and investor asks, and the answer should be the document.

What it costs

Consultancy or contractor agreement, £595. Drafted for your business. Five working days.

Template set for repeat use, £895. One master agreement plus a short-form schedule you can reuse for every engagement. Five working days.

Buying online forms the engagement on payment. The scope is what the consultancy and contractor agreements page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• A clear, express assignment of intellectual property to your business
• Confidentiality provisions that protect your business information
• Restrictive covenants drafted at a scope a court will uphold
• Clear treatment of status, so the arrangement is not accidentally something else
• Payment, deliverables and termination provisions that match how you work
• A reusable structure, so the next engagement costs you nothing

What is not included

• Employment status determinations and off-payroll working assessments, which need your accountant
• Tax advice
• Disputes with a contractor you have already engaged
• Immigration and right to work compliance

Questions I am often asked

Our contractor built our website and we have no contract. Who owns it?

The contractor, with the business holding an implied licence to use it for the purpose it was commissioned. A confirmatory assignment signed now cures it; the agreement for future work assigns from the outset.

Does an email saying 'you can have the IP' work?

If it is in writing and signed by the consultant, it can operate as an assignment, but its scope will be argued over. The agreement assigns in terms that cover present and future work, with the formalities section 90 requires.

Can the consultant keep using their own tools after assigning the work?

They can, if the agreement identifies pre-existing materials and know-how and keeps them with the consultant under a licence to the client. Without that distinction the consultant has either assigned too much or the client has received too little.

Related guidance and services

• Consultancy and contractor agreements, £595, the service this page describes
• Contract review, £495
• Employment contracts and handbooks, £595
• Confidentiality in a consultancy agreement
• Contractor agreement for a software developer

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: October 2026. Email geoffrey@caesar.co.uk.