PM World Today Letters To The Editor

Eric Jenett Comments on the September 2002 Editorial

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 MI. 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/standards/pmgrows.htm, "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 poision 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

Eric Jenett Comments on the September2002 Editorial:

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 seemsto 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 cannnot 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