By Jesse Kim
(Originally published in October 2011)
I’m not a theologian but I have an opinion or two about the Protestant Reformation of the 16th century. I’d say the most important disruptive change in the Reformation came about when Martin Luther published his translation of the Bible in the German language, completed in 1534. The significance of this event cannot be stressed enough; before this, the “Bible” in Europe was the 4th-century Latin text, which was read, understood, construed, and preached only by priests of the Roman Catholic Church. People still practised by doing their prayers and performing rituals and following the doctrines of the Church, but when it came to the very core of Christian faith, the Word, they had to rely on what little their priests conveniently chose to give away the way the Church wanted. Such pre-Reformation reality seems simply unthinkable in this day and age where there is certainly no problem of disclosure or access. The Luther Bible came as an awakening to those issues of disclosure and access, and that, in my view, marked the most crucial departure from the practices of the then Roman Catholic Church.
Nobody in their right mind took that for granted
Luther’s German translation of the Bible, which people could actually read and comprehend for themselves, was made widely available thanks to the availability of the printing press, a technology that happened to be burgeoning at that time. It also contributed much to the standardisation of the German language and became a cornerstone for other language translations of the Bible. But most importantly, the Luther Bible made people realise what they were missing out on and demonstrated that it was possible to have access to it, which nobody in their right mind at that time took for granted. In this sense, what I would call “access to an understanding of the core substance” is the true value of the Luther Bible.
All work of the mind
The reason I bring this up is because I can’t help but think of the leap from the Latin Bible to the Luther Bible whenever I come across the notion of intellectual property in information technology (IT), particularly on the software side. Everyone in this field sure knows that what’s built and traded at the end of the day is all a work of the mind, be it an invention, or an outcome of creative effort, or an identifier that carries reputation and goodwill. Yet, a creative IT professional’s trail of thoughts usually stops there, short of recognising that in order to commercialise their intellectual assets, they must be vigilantly taken care of, protected, and managed as “property” rights. This applies equally to large and small operations; an individual software development contractor has as much responsibility over her intellectual property as does a manager in charge of a product line.
The fallacy of a blanket statement
Intellectual property is taken seriously and with the highest degree of paranoia in areas such as the pharmaceutical industry and the music industry. What happens in many IT projects, however, is that managing, defending, and enforcing rights over intellectual property is simply seen as a job of “legal” people in case “something” happens. In many employment and service contracts, clauses on intellectual property are virtually non-existent, or are provided as a blanket statement along the lines of “all intellectual property generated during the employment/contract shall remain with the employer,” whose implications and limitations are not at all well understood by the employee/contractor or the employer. And when “something” does happen, neither party knows how best to deal with and resolve it.
A potentially greater issue lies in the delivery of an outcome of an IT project, regardless of its scale. While the monetary side of things is usually unambiguously spelt out, questions such as these are not answered, understood, and agreed upon clearly in many cases:
- What is (to be) delivered? Does the deliverable involve patented/copyrighted/trademarked elements?
- Is the deliverable owned by the purchaser/client of the product or service, or is the purchaser given a licence to use it? If it is a licence, what are the scope (exclusive vs. non-exclusive), type (commercial vs. non-commercial), and term (perpetual vs. time-limited)?
- Who handles and what happens to future improvements? Is there a warranty?
- In case of dispute, is there an agreed course of action (arbitration/court proceedings) and jurisdiction?
- (This is often the hot potato in custom-developed software systems.) Can the provider of the product/service take the experience and outcome of the current project and apply them to a similar future project for another client? In other words, who owns how much of the intellectual property and for what purpose?
In IT, “intellectual property” is largely a Latin Bible
Turning a blind eye on these things or resorting to a blanket statement instead of agreeing on the terms that best suit the specifics of the project can bring undesirable, costly consequences regardless of whether there is a team of “legal” people behind it. While IP lawyers and IP law specialists are there for a reason, for IT professionals to neglect the legal intent of their own creations and productions and then to expect lawyers to solve all commercial problems is akin to relying on medieval priests to interpret the scriptures.
Education, territoriality, and bridging the gap
Further, what makes IP a Latin Bible for IT professionals in particular is the disconnect between development and commercialisation (or technology transfer). Principles of intellectual property applicable to IT disciplines are not taught in universities; neither do employers train their employees and contractors sufficiently on those. What complicates matters even further is the territoriality of IP law; while there are international conventions and treaties, there is no such thing as a worldwide patent or worldwide copyright protection. It all comes down to what the local legislations dictate at the end of the day. On the other hand, IP law is widely inter-disciplinary, meaning that one cannot expect lawyers to equip themselves with a technical edge; it can only be the other way around, and the responsibility of bridging the gap between IT and IP ultimately lies with IT professionals themselves.