Who Owns Human Capital? A critical appraisal of Legal Techniques for Capturing the Value of Work

Abstract:     
Our laws - particularly the doctrines developed in the equitable jurisdiction - which privilege property owners have created expectations that employers of workers become the owners of the intellectual capital produced by labour. Presumptions in our intellectual property laws, and the post-contractual extension of the employee's duty of good faith and fidelity have strengthened employers' capacity to retain human capital within the firm. At times of womb-to-tomb employment patterns, such laws may have been defensible. But the world has changed. This paper argues that in the deregulated, flexible workplaces encouraged by the Workplace Relations reforms, workers bargain not for job security, but for employability, i.e., the opportunity to acquire skills, experience and contacts which will enhance prospects for continued employment market participation. If this bargain is to be upheld by law, we need to reexamine legal attitudes to the ownership of human capital.

JEL Classifications: K31

Accepted Paper Series