No licence granted

NDA Anatomy™ JC’s guide to non-standard confidentiality agreements. For the OneNDA, see the OneNDA Anatomy →Go uptown Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | OneNDA | Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | No licence | Non-solicitation | Permitted disclosees | Permitted disclosures | Procure compliance | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term of confidentiality | Index: Click ᐅ to expand: Confidentiality OneNDA Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

You may, from time to time, see something like this.

“All of Discloser’s Confidential Information shall remain the absolute property of the Discloser. Neither this NDA nor any disclosure of information hereunder grants the Recipient any right or license under any trademark, copyright or patent now or hereafter owned or controlled by the Discloser.”

This is a classic legal eagle overreach, confusing the contractual obligation of confidentiality with the intellectual property concept of ownership.

Confidentiality agreements are not about ownership. They’re about keeping shtum.

So firstly, in giving spicy information to a counterparty under a confi, you are licensing it to use the information for the purpose — to the extent that you’re even entitled to grant a licence, of course, and that is your problem, not the receiving party’s — and there’s not really anything to be gained by denying that fact.

Secondly, in giving information under a confi, as the foregoing implies, you are not necessarily the owner of the confidential information yourself. You may be a licensee of someone else’s proprietary information, and indeed the confidential information may not be owned at all, or even capable of being owned, by anyone. You cannot copyright raw data.

If you fancy a swept-back wing knee-slide, when confronted with such a provision, consider the following:

“All of Discloser’s Confidential Information shall remain the absolute property of the Discloser. Neither this NDA nor any disclosure of information hereunder grants the Recipient any right or license under any trademark, copyright or patent now or hereafter owned or controlled by the Discloser beyond those reasonably necessary to exercise its rights and perform its obligations under this Agreement and the Project.”

Like, in your face, dude.

See also

• Copyright
• Intellectual property