Present assignment versus a promise to assign
The distinction between present-assignment language and a future promise is the most consequential drafting choice in a foreground-IP provision. Hereby assigns effects an immediate transfer of title at execution. Agrees to assign or shall assign creates only a contractual obligation to assign in the future, which requires a further formal document to perfect the legal transfer.
The practical difference shows up exactly when it matters. If you only have a promise to assign and the contractor later refuses, becomes insolvent, or disappears, you hold a contractual claim, not the IP itself - and you may be left chasing the signature you needed. Present-assignment wording avoids that.
Future copyright vests automatically: s.91
English law makes present assignment especially powerful for copyright. Under section 91(1) of the CDPA 1988, a present assignment of future copyright takes effect automatically as a legal assignment when the copyright comes into existence - no further act is required. So hereby assigns future copyright vests title in the assignee the moment the work is created.
This statutory mechanism applies directly to UK copyright. For non-UK copyright, effectiveness depends on whether the relevant jurisdiction recognises a present assignment of future rights - the Berne Convention and most major systems generally give effect to properly executed assignments, but formalities vary, which is why further assurances matter.
The writing requirement
Formalities are not optional. For UK copyright, an assignment must be in writing and signed by or on behalf of the assignor (section 90(3) CDPA 1988); an oral assignment is void. Most jurisdictions require written form for IP assignments, so written, signed assignments are the safe course everywhere.
So an IP assignment buried in an unsigned document, or left to an oral understanding, may transfer nothing. Get it in writing, signed, and clearly identifying the rights assigned.
The dual construction for cross-border deals
To maximise enforceability across jurisdictions, use a dual construction: a present assignment of existing and future IP rights in any jurisdiction worldwide, with full title guarantee and free from encumbrances, combined with a further-assurances obligation requiring the contractor to execute any further documents and do anything reasonably necessary to vest and register the IP in the client in any jurisdiction.
This does three things: it effects an immediate legal assignment of existing IP; for UK copyright it triggers section 91(1) so future copyright vests automatically; and the further-assurances obligation provides a mechanism to perfect title in jurisdictions that require additional formalities.
What to check
In review, read the verb. Hereby assigns (with present assignment of future rights) is what you want; agrees to assign or shall assign is a weaker promise that needs follow-up. Confirm the clause covers existing and future rights, in all relevant jurisdictions, in writing and signed, with a further-assurances obligation and (ideally) a power of attorney to execute documents if the assignor will not.
The assignment clause is where ownership is actually transferred - or not. A clause that merely promises a future assignment is a frequent and avoidable reason clients do not own what they paid for.
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Practical checklist
- Use 'hereby assigns', not 'agrees to assign' or 'shall assign', to transfer title immediately.
- Include a present assignment of future copyright to trigger automatic vesting (s.91(1) CDPA for UK copyright).
- Get the assignment in writing and signed (s.90(3) CDPA) - oral assignments are void.
- Assign existing and future IP rights in any jurisdiction worldwide, with full title guarantee.
- Add a further-assurances obligation (and consider a power of attorney) to perfect title abroad.
- In review, read the verb - a promise to assign is not an assignment.
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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