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Working Towards a Formal Supplier-side IP Policy

It looks like RedMonk needs a standard intellectual property rights (IPR) clause to help us when we work with larger vendors with master service agreements that over-stretch when it comes to ownership of intellectual property.

The more of these agreements I see, the better I understand the origins of the GNU Public License (GPL). The Creative Commons is another reaction to the world of over-stretch contracts. We’re in the analyst business, you see, not the negotiation and legal business.

A good partnership contract should leave something on the table- these ones don’t.

One reason IP is so important to RedMonk is that we make much of ours freely available. Open source analysis is definitely not a high margin business, although consulting pays the bills. Our blogs are not behind a firewall. We use a range of Creative Commons licenses.

But more importantly we’re at the cutting edge of the Collaborative Innovation wave. We can’t hand over rights to some of our work any more than a Linux distro could repackage as proprietary.

I hope to get to some wording that would work for free agents of all stripes, and then to publish it under a Creative Commons Public Domain Specification. Its a shame that there isn’t already a registry of free creative commons contracts to use in this way.

Does the below make sense to everyone? Comments from lawyer types out there, people like Mark Lloyd, Mike Dillon, and David Rudin would be particularly welcome.

Unless explicitly noted in a formal Statement of Work, all work product shall be considered Background IP.

Background Intellectual Property shall mean Intellectual Property, proprietary information or confidential know-how relevant to the Project which is in the possession of a party prior to the commencement of the Project or generated after commencement of the Project but independent of the Project. Such product remains property of the vendor, including, but not limited to ideas, inventions, improvements, discoveries, software design, software coding, charts, drawings, specifications, notebooks, tracings, photographs, negatives, draft or final reports, findings, recommendations, data and memoranda.

Works published under copyright during the term of the service agreement will remain copyright of the vendor, unless explicitly agreed within a statement of work, or licensing agreement. The named vendor retains all rights to work undertaken under the term of the agreement, unless published under a community license such as the Creative Commons, in which case ownership may pass to the community (no IP of the client shall be so published without written permission.)

Anant Jhingran of IBM recently argued that business research should become more like academic research, with open data for replicability and peer review. RedMonk believes strongly in this approach. He said:

What can a company such as IBM do to advance this? What can Google, Yahoo, Microsoft, Oracle, SAP do? Thoughts?

One answer is relatively simple Anant. Firms need to go back to the source and rethink supplier and IP agreements for the age of collaborative innovation, as touted by Irving WB, in order to ensure that open collaborative IP is indeed possible.

I am going to go a little further. Firms that don’t have IP agreements in place that allow collaborative working according to the New Patronage Economy will be at a serious competitive disadvantage against others that do. You see, collaborators, and that is what we are, have a choice… be easier to work with and the smartest people will gravitate towards you. Try and try to take what is not yours, and you’ll find the well of collaborators runs dry.

disclosure: IBM is a client, but was not the subject of this blog.

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8 Responses

  1. Knowledge hoarders (companies that protect their IP jealously) are following the old saying: “knowledge is power”.

    Can’t blame them, that’s how they were raised.

    Get some lawyers on that.

    Christopher MahanAugust 14, 2007 @ 6:34 pmReply
  2. [IANAL; this is much closer to editing advice than legal advice anyway, but standard disclaimers apply."

    "Unless explicitly noted in a formal Statement of Work, all work product shall be considered Background IP.

    Background Intellectual Property shall mean Intellectual Property, proprietary information or confidential know-how relevant to the Project which is in the possession of a party prior to the commencement of the Project or generated after commencement of the Project but independent of the Project."

    These seem slightly redundant: you've first defined background IP as 'everything not in a SOW', and then you redefine it as .. this long list of other stuff. If nothing else, I'd rearrange the order- define Background IP, and *then* say that everything not listed in the SOW is assumed to be Background IP.

    In the second paragraph, instead of "such product", say "background IP"- you've defined the term, so use it :) I might break that last sentence into a separate paragraph as well, so that you've got one paragraph defining background IP, and then a second detailing the rights you retain with regards to background IP.

    Instead of "Copyrighted works published during..." I'd say "Copyrightable works created during..."- that is much more comprehensive.

    More generally, do you see overlap between this second class of works and "Background IP?" It isn't entirely clear to me where one ends and the other begins, or why you deal with them differently.

    Ownership does not pass to the community in the CC situation; you retain ownership but grant certain rights to the community under certain conditions. I might rework that section to read "The vendor retains all rights to work undertaken under the term of the agreement, and may license or republish the work under any terms, including licenses such as Creative Commons licenses which grant extensive rights to third parties."

    You probably want "No IP of the client shall be published without written permission" to read something like "The client's confidential information will not be published without written permission", since 'IP of the client' is very broad and could well contain things that are already public. For clarity, I might also break this out into a separate paragraph.

    As far as pre-existing forms, you might want to look at the Science Commons forms for further inspiration: http://scholars.sciencecommons.org/#form

    They deal with a similar situation- the publisher has standardized, CC-unfriendly contracts and most of the power, so the CC forms are framed as addenda to those contracts. I imagine you’re in a similar situation with IBM, etc.

  3. luis v – you da man, thanks so much for that.

    chris m – yes and no. i would like to remove as many lawyers from the equation as possible. except of course ones that make a contribution… ;-)

    jgovernorAugust 16, 2007 @ 11:23 amReply
  4. Thanks James, for connecting my thoughts with the thrust of your writing. I definitely have to do some more reading on this. In my small way, I am going to try and find some kindred spirits in some of the large companies I had mentioned, and see whether we can craft some creative licensing + the right anonymization to spur such innovation around “large data sets”…

  5. @anant for obvious reasons i would really love to be involved in that initiative.

    jgovernorAugust 22, 2007 @ 5:11 pmReply
  6. Might also keep an eye on http://www.ownterms.org/ too, jgovernor.

  7. This looks very interesting, but I would like to have more details before commenting further. Some time ago I catalogued all open licences I could find, and there is now a small database with all of them at this address:

    http://www.worldlii.org/int/other/PubRL/

    There may be already a licence that does something similar to what you are thinking.

    As for your licence, there are a few questions that you have to ask yourself whenever you want to create a new licence:

    - What do you want to protect?
    - Is the subject matter protected by a form of IP? If so, what type of IP is it?
    - How do you envisage others will use your work?
    - What is the worst thing that someone could do with your IP?
    - Do you want to let others profit from the work? Make modifications? In other words, what restrictions would you like to impose?

    Answer those questions, and you have your licence.



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Continuing the Discussion

  1. [...] learn from.  In some ways, it is yet another manifestation of the dialog that I talked about, and James Governor talked [...]