The issue of how to protect the integrity of participants and their Intellectual Property in collaborative work sessions is an important process design problem when open, creative, spontaneous results are desired in real-time circumstances.

This is made more difficult by two factors. One is that there is general confusion and little distinction by most people between their ideas, IP and Intellectual Capital. The second negative factor is that IP is highly controversial now, as a social issue, and going through a number of shifts in its legal interpretation. These are really two different issues but they feedback on two another creating a volatile and passionate situation.

There is no question that a number of innovations, both technical and social, will alter the present IP landscape. I expect that it will take a number of years for this sort out. The present pursuit of IP as an agressive strategic tool of large corporations will be with us for some time. The question is what do we do now in circumstances of intense collaboration and compressed time?

My personal bias is toward an open source within protected ValueWebs which have clear, fair and enforceable protocols that recognize contributions and rewards those who make them. This, to be sustainable, will have to ultimately rest on a legal IP foundation that is much simpler than what we have today.

Ideas, of course, cannot be legally protected. There are fields which, by convention, regulate and protect their members in this regard - science being the most obvious example. This works when it is overwhelmingly to the advantage of all to do this and when there effective ways of social censure - in the case of science, getting kicked out of the club. The integrity of these traditions of science has been eroded, in recent years, as the value of scientific ideas has gone up. IP is, in its present legal form, is a social contract between the creator of something new and society. The basic legal theory is that the government can promote the more rapid distribution of invention by granting a limited monopoly to the creator so that economic rewards can compensate for effort. There are many forms of IP and they call operate under different rules: persona, trade-dress, trade-secrete, design-patent, (functional) patent and copyright. Of these, copyright is the most successful and simplest to enforce. It does not protect ideas but it protects, extremely well, unique expressions of an idea in written, graphical and sculptural forms. It is fairly easy to get and maintain copyright protection. Patents involve a long and expensive process and are often tested by litigation. Here, economics plays a major role. Persona, trade dress and trade secrete protection are “free” but slipperier in their definition. Maintaining them requires active work and diligence on the part of the property holder. To protect a complex product or service, a mix of these IP forms is often required and this demands a strategic perspective coupled with active management, on the tactical level, over a protracted period of time. To dabble in IP protection it just to annoy others and waste your own time and capital.

In prior eras, characterized by a few “creating” and many doing within hieratical, stove-pipe organizations with rigid boundaries, IP was far less a problem than now. In the knowledge economy, characterized by rapid change, ad-hoc organizations, team work and shifting alliances with ideas, invention and innovation as the major value-add, IP - and the consequences of having it, or not - becomes a complex and expensive issue. Thus, our present situation.

Different people care about different aspects of this issue at different times of their lives. How they care is also greatly effected by particular circumstances - even the specific “property” in question. Charles Ives, the American composer, became wealthy in the insurance business and insisted on his music being distributed for free. He became very upset, however, when it was altered in performance to make it easier to play.

People want to be treated fairly. each may have their own definition of this but there is a general social consensus on what fairness means. Some may be concerned with credit, some with money, some control of a product - all legitimate concerns. Some may be concerned with all of these in some arena and not in others. Some may want to share their IP, others not - and there can be many circumstances that could sway one to share or not. Some are not concerned about the issue at all. The bottom line, however is that if you have IP, you can sell it or give it away. If you do not secure it, you cannot get it back.

No matter all these considerations, IP is always an issue between and individual and a community. It is always an issue of personal wealth - not matter how you define it - and commonwealth. It always involves ideas, creativity and invention. It is a consequence of hard work. And, no one cares unless there is considerable value involved. Resolution always involves great integrity no matter if it involves an informal agreement between individuals or it involves the legal mechanism of the state.

It becomes a problem when someone uses theft, misused power, overwhelming economic strength to appropriate the rewards earned by another without true negotiation and compensation. It is also a problem when an individual pretends that they did it all alone with no contribution of any kind from anyone else or society and claims the right to block the advance of others because of their right to their “property.” If there was ever an issue where good sense, balance, fair play and rigorous practices are needed, it is the field of intellectual property. A causal observation of what, today, is called the marketplace will show, unfortunately, that these are the factors most missing. Thus, our present situation.

In the MG Taylor ValueWeb® we have had our ups and downs with these issues. We have evolved some protocols that facilitate our way. The most basic is to give credit where credit is due be that to a person, alive or dead, an institution, a social system or an era. Another is to secure IP where it makes sense to do so but to remember that the basic justification is to seward a resource not only for, individuals and our community, but for the general good. IP, properly used, is but a means for promoting increasing returns in both the realms of individual wealth and commonwealth - both being necessary for the existence of the other. We have also evolved rules that work reasonably well in formal group design sessions. These work as “swarming rules” and as a covenant. They can be drafted into a credible legal agreement, if necessary.

The basic structure of these rules is that [1] you own what you came with; what happens with what is created in the collaborative session [2] is only as agreed upon at the beginning of the session; that you share only what you are comfortable to share and what you share falls under [2]; that [3] you communicate in real-time if what you are putting into the mix is proprietary and requires terms and compensation outside of any in-place agreement; That all claims or disputes must be resolved in open session before the end of the event - [4] there are not claims post design session. A protocol that can be added to these rules is that in projects of great length, with many contributors working collaboratively over this time in different venues (what we call a PatchWorks architecture), that the practice be the gathering of all and reviewing any claims prior to shipping the product and that [5] the community comes to agreement before success is known and there are no claims post shipping. It is worth the time to do this every major iteration of work and prior to presentations, etc., where something can be sold, an agreement made, that could radically alter the financial basis of the product or the enterprise.

It should be clear that these protocols will work only if exercised on a high frequency, low magnitude basis and that accurate documentation is key both for memory and for keeping people honest. Results of each protocol activity should be posted in a community public space. Constant feedback and social transparency are necessary for success.

If doing the work is the focus of a community of practice and financial well being is the reward of doing it well, then there should be little difficulty in resolving small conflicts. The trick is to solve them while they are small. When the purpose of the work becomes to get rich as fast as possible as was the style of so much of the last technology bubble, then I would not hold out much promise for these kinds of protocols - I would suggest a platoon of lawyers instead. Like so much of life, it is a reap what you sow kind of thing.

Another thing to consider is that different communities of work come together for different purposes and often there is significant overlap of what our society, today, considers to be competing agendas. For example, a team of technology folks developing a software program needed to facilitate communication on the Internet having as a goal the general betterment of the social/political process. Making money is not the objective of this effort. However, there is still economy involved and there are many applications of the same software to business that legitimately can be sold for significant profit. Instead of these being competing agendas, and a source of conflict among those doing the development, these opportunities can be seen as mutually supporting facets of the same thing. A non-profit/for-profit enterprise structure may be an effective enterprise model. I believe we will see much more of this kind of thing in the future.

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posted: July 19, 2003