Copyright & Fair Use
By David Curling
The matter of Intellectual Property has seized many of the project management professional organizations over the past couple of years. In commercial organizations and particularly on line it is clear. It belongs to the commercial organization. For not for profit professional organizations, involved in the advancement of a project management discipline, the legal ruling is also clear but the matter is fuzzy when one relates it to the goals of such organizations. Intellectual Property in the areas of PM copyright and "fair use" has been the subject of many learned discussions.
For "not for profit" professional organizations how does one maintain an open searching seeking system and at the same time protect the organization's intellectual property? There is no easy answer but what is clear is that some PM professional organizations appear to have carried the question of intellectual property rights to ridiculous length. In some instances one cannot have a collegial or collaborative discussion or meeting without the disturbing matter of who owns what we have just discussed.
The legal fraternity are no help. What is required is a reasonable intellectual rights policy for all the international professional organizations that permits open and collegial discussion. That is, perhaps intellectual rights should be waived or a "not for commercial purposes" mandate for such initiatives as on line discussion groups, email and other events where open and free discussion on key project issues can be conducted without the anchor of property rights.
The PMFORUM subscribes to the Thomas Jefferson opinion that there are no barriers to the acquisition of knowledge, Nobody owns it, everybody partakes of it - and the world becomes richer as a result.
"If nature has made one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea... No one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine: as he who lights his taper at mine, receives light without darkening me"
At the same time we must recognize that the profession must work within a more rational state of affairs for the continual health of PM professional organizations, if the profession is to live and survive with the critical need for continual technical and business processes innovation.
In any case we are not sure that it is the professional PM organizations position that is now inhibiting progress and innovation but rather that the people with experience are so fed up with the Intellectual Property situation they are not contributing in a serious manner, if at all. Also, we cannot be sure just how much "Intellectual Property" professional organizations really own. We postulate that they certainly own, and are entitled to own, the artistic merits of their publications. All else belongs to the various contributing authors..
Stanford University Libraries has an online Copyright & Fair Use site. The site features links to the U.S. Constitution clause on patent and copyright, the U.S. Code and Federal Regulations. Materials include links to case law and judicial opinions and Supreme Court Opinions. Also on this site is legislation covering current copyright legislation and cases.
This site can be searched by keyword or concept. Relevancy scores are included with search results. The site is reached at http://fairuse.stanford.edu/
About the Author:
David Curling is Editor of the Project Management World Today and Webmaster
of the PMFORUM. He has been a professional soldier, systems engineer, logistics
engineer, procurement executive, senior public servant and project manager
He is Executive Director of LODAY Systems Ltd. and provides project management
consulting to both government and industry. David has particular expertise
in the management of major international projects.
Eric Jenett Comments on the September 2002 Viewpoint Column l: "Copyright and Fair Use"
Thank you for bringing to the fore what I believe has been a serious cancer exploding throughout the "progress contribution system" which is, or at least should be, an integral and major part of efforts for their profession by professional organizations.
In my own case, I was for years a contributor (I hope) to PMI's efforts to develop standards of use to the PM Profession. When the organization introduced the requirement that ANY contribution/input - accepted or not - must be made under/after signing its copyright assignment form in order to receive ANY consideration, I opted out.
It has been stated to me that copyright does not cover "ideas" but rather their specific embodiment as/in language. That same explainer did not provide a rationale for the discussion of ideas other than as written text, tables or graphics.
It seems to me, that organizations are entitled to a "reward" - as a copyright for their efforts is bringing together individuals in order to produce, publish and distribute a product such as a standard. I also think they can correctly ask that contributors assign copyrights for their contributions AS PRESENTED IN THE FINISHED PRODUCT but excluding rejected or severely modified material.
In such a copyright assignment, I would expect a phrasing acknowledging that the knowledge represented in the finished material is that of the individuals contributing, that the organization in copyrighting the finished product is doing for the contributors what they cannot reasonably do for themselves individually, and that the copyrighting is to inhibit the use by a individuals or organizations for personal benefit of material belonging to its membership.
The oft heard argument that "Oh, but we have 200 volunteers who have
signed and are contributing." is perhaps more an observation on the understanding
of the contributors or on the value they expect to contribute. I really believe
there ought to be a "guide" wording for copyright assignment content
developed for professional groups such as PMI. This should cover, as distinct
elements, concepts,
formulations, and even special presentations or displays.
Anyway, thanks for bringing to the fore a serious "sore" within the body of knowledge of, at least, the PM community which has been and is inhibiting the preparation and dissemination of useful (even needed) material.
Eric Jenett
EJConsult
Principal
HOUSTON
TEXAS
U.S.A.
Email address:
ejenett@compuserve.com
Copyright & Fair Use A Letter to the Editor from John Schlichter
I was quite surprised to find this topic among your editorials.
Without seeking this subject out, I have become an unsung champion of copyright
and fair use. I will recount my interest here, and I will do so extemporaneously
and with no prior preparation beyond my own informal education on the topic
forced upon me by circumstance, and without any idea before five minutes ago
that this subject would occupy my time once again, here and now. It is one
of those things that is forced upon business leaders who are by their station
the
protectors of those whom they lead. It is one of the hottest subjects to have
reached new levels of prominence through practical realization of globalization
and the networked economy, whose
currency is knowledge. It affects you whether you realize it or not.
First we must acknowledge the distinction between ideas and words. Ideas are not protected, and anyone may absorb and use ideas wherever they may find them (absent devices like patents), but the specific words used to express ideas are protected by copyright law. This brings us to a second distinction between protecting words and owning words. The need to protect words shared by a professional community in order to preserve them as the embodiment of mutually agreed upon and shared knowledge is clear. But are the words owned by those who protect them or by those who agree upon and share them, principally those who articulate them in the first place and propose them as special words created by members of the profession for use by members of the profession? These questions introduce myriad practical and philosophical issues that shape the very foundation of cooperation between a nonprofit professional organization and its members. For purposes of this discussion, we can classify these issues into two groups: 1)implementing copyright policy and 2) conflict of interest issues.
Implementing copyright policy can be especially difficult. As the business
environment evolves and as organizations learn how to cope with changes, pressure
to change the rules of the game can mount. Furthermore, it is not always easy
to define the scope to which a policy applies. At the heart of copyright policy
are rules for use, which relate to things like individual versus company rights,
licensing parts versus the whole, derivative works, and warranties. It is
easy not to know what you do not know as the legal concepts multiply in this
convoluted domain, which is absolutely no excuse for ambiguity. And remember,
ignorance of the law is no excuse
either.
Professional organizations mobilize members of the profession to cooperate
in the advancement of knowledge helpful to members of the profession. To quote
Jeannette Cabanis from
http://www.pmi.org, "Standardization is, for the most part, a grassroots,
democratic process that results from businesses and organizations choosing
voluntarily to develop guidelines for themselves." In some cases, the
terms of cooperation are defined in legal contracts, and in all cases a "social
contract" is invoked. In a volunteer organization, volunteers are not
employees of the organization, and volunteers participate of their own volition
as part of a cause. The integrity of the cause is embodied in both the explicit
and tacit agreements and assumptions that exist when a volunteer volunteers
for the first time. Naturally this integrity would be broken if a volunteer
were engaged under one set of assumptions and then those assumptions were
changed after the volunteer had made his or her contributions to the cause.
A common
phrase for this tactic is "bait and switch." Because volunteers
are not employees who have assigned rights to invention to the employer, volunteers
can pack up their toys and go home at any time, taking with them not the ideas
but the specific words they have articulated to represent their ideas, which
is enough to be disastrous to the grassroots, democratic process that results
from business and organizations choosing voluntarily to develop guidelines
for
themselves.
Furthermore, it is not always easy to define the scope to which a policy
applies. Copyright policy must apply to a final work, and it may or may not
apply to interim work products. In either case,
defining what the work is can be a nontrivial task. Clearly this is of the
utmost importance because we must know what the work is if we are going to
entertain rules for use of the work. Rules for use are subject to the same
issues already described, namely that they represent an agreement entered
into at a point in time, an agreement that is only meaningful if it can not
be changed without the consent of those who entered into the agreement originally.
Furthermore,
professional organizations are faced with the difficulty of protecting the
interests of their members; if a professional organization defines rules to
favor itself for use of a work developed by a volunteer community composed
of market participants, this can be construed as a "restraint of trade."
The professional organization must insert the appropriate language into its
copyright policy to protect the interests of those people developing the work
(s) that are subject to the policy. This means, for instance, that copyright
policy should include language regarding the license for the work(s) that
makes it a "non-exclusive, perpetual, irrevocable, worldwide, fully paid-up,
royalty free" license. It also means that one must address licensing
parts versus the whole. For the most
part, individual volunteers contribute parts to a whole, but getting rights
to only a portion of a work can not be very useful in the end. If the professional
organization has rights to the whole but
the individual volunteers who create the work only have rights to parts, then
the rules of use will clearly favor the professional organization.
This begs the question "Do these rights apply to the individual volunteer
or do they apply to his or her company?" In a volunteer organization
mobilized around a cause designed to advance the
profession, volunteers often have permission from their employers to spend
time on the cause. Additionally, sometimes it is hard to distinguish between
the individual and the company when the
individual owns the company. To grant licensing rights to a volunteer's company,
one would either have to have the license granted to the volunteer and the
volunteer's company specifically or
have it give the volunteer the right to license the rights to the company.
Adding to the complexity, how do you keep track of what each individual has
contributed? If the head of a team orchestrates the efforts of the team and
submits the team's product, what intellectual property is owned by whom? What
truly are individual efforts and contributions in a team effort? These are
not easy questions to answer.
At the heart of issues related to rules for use is the subject of derivative
works. Copyright law on derivative works is poorly written. It defines "derivative"
as work derived from another work,
which is not very helpful. In principle this is married to the issue pertaining
to licensing parts versus the whole; naturally an individual volunteer may
use the part he or she contributes to
create derivative works, but this may not be very useful without access to
the whole work. If only the professional organization has the license to the
whole work, then only the professional
organization can create derivatives of the whole work. In effect, this means
that the professional organization controls the infinite possibilities for
products based on a work that it did not develop,
and perversely those who actually create the original work do not share this
right. The issue becomes even more complex when you try to distinguish between
the ideas and the words, and when the words either are or become common usage
within management science. For
example, who owns the phrase "project management body of knowledge?"
I recently spoke at a project management conference in Cannes, where I enjoyed the presentation of Professor Colin Turner, who said "The successful organization of tomorrow will learn and apply both the principles and practices of entrepreneurial leadership today. The route to instilling this important sense of ownership is through understanding, developing and forming entrepreneurial characteristics, as they are the very foundation of good project management." It occurred to me that his statements are in fact most applicable to volunteer organizations, which must attract people motivated by their sense of ownership of what they agree to spend their precious time on, time they might otherwise spend with their families or for their employers. This means that a perfect alignment of interests must converge between the professional organization and its volunteers. The opposite of a perfect alignment of interests is a conflict of interests. A conflict of interests exists when any two coexistent interests are at odds, that is, when one interest conflicts with another interest. It is remarkable how often this obvious principle is lost in practice.
One of the most important things a professional organization does is to shepherd
the grassroots, democratic process that results from businesses and organizations
choosing voluntarily to develop guidelines for themselves. To do this effectively,
a professional organization must protect the interests of those participants.
While a professional organization, even a nonprofit one, must thrive and invest
in revenue-generating activities like any other organization, if it competes
with its volunteers (ANY of its volunteers), then the integrity of its relationship
with volunteers is completely compromised. To put a finer point on it, if
the professional organization maintains an interest in enrolling volunteers
on the one hand and an interest in competing with those same volunteers on
the other hand, then the structure of its relationship with volunteers can
be defined in the most literal sense as dysfunctional, i.e. a conflict of
interests. I believe that herein
lies the heart of the issue. It is the root cause of either harmony or dissent,
while deliberations on copyright and fair use are merely symptoms. To eliminate
a poison or cure a disease you must treat the causes and not merely the symptoms.
I have become an unsung champion of copyright and fair use, having been recruited to the cause of volunteers for a professional organization myself years ago by a man whom I respect very much, namely Bill Duncan. It is one of those things that is forced upon business leaders who are by their station the protectors of those whom they lead, whether their followers realize it and acknowledge it or not. It is one of the hottest subjects to have reached new levels of prominence through practical realization of globalization and the networked economy, whose currency is knowledge, that is, the ideas and words of those who know things. It affects you whether you realize it or not because it ultimately defines both the structure of the professional organizations that shape your profession and the unique and transformational possibilities brokered in social contracts by members of a profession working together as a community.
John Schlichter, MBA
CEO Agylon
http://www.agylon.com
john@agylon.com