Blog

Thinking Ahead Thinking Aheadwith Warren Weertman

Date posted : 16-09-2013

Intellectual Property and Future Studies: Determining What’s What and Who Owns What

Today I am wearing my lawyer and futurist hats, so I’m 1/3rd of the way to wearing De Bono’s 6 Thinking Hats.

One of the issues that is quite important when running a futures exercise is to deal with the intellectual property (or “IP”) that is generated as a result of the exercise. The IP you’re creating with the futures process can be seen as the “secret sauce” that makes the whole process and its outcomes possible.

IP is quite a broad subject area, but I would like to cover some important points (at a very high level) that you need to keep in mind.

Bear in mind that this blog posting should not be construed as legal advice and it’s important to consult an IP lawyer to check the legal position with regards to your particular circumstances, given that IP laws do vary from country to country.

1. What is IP?

IP is a bundle of legal rights that protect creative output. Typically the rights are granted by legislation and generally protect the following kinds of works:

  • Trademarks: logos and slogans;
  • Copyright: books, blogs, pictures and music (typically stuff written down);
  • Designs: the look and feel of industrial products, like the iPhone;
  • Patents: inventions

Some of these IP rights need to be registered to be effective (e.g. trademarks, patents and designs) but copyright (in Europe) doesn’t always have to be registered to be effective. In the US, it is possible to register your copyright with the US Copyright Office. So again, if you’re not 100% sure, it’s a good idea to get some local advice.

2. Who Owns It?

I’m going to deal with employment situations first …

As a general (and very general rule), if you create IP, you own it. But there is usually an exception in your employment contract and local laws stating that if you create any IP while at work, your employer will be the owner of that IP. It could also happen that if you’re employed as a software developer at work and develop software at home, your employer could own the IP in that software too. So have a look your employment contracts to see what they say about IP.

But let’s think a bit broader …

Let’s say you’re an organisation and you get a futures consultant in to help you develop your futures thinking. Who owns the IP? You? Or the consultant? This is where things start to get interesting …

The first thing that you need to think about is the difference between background and foreground IP. Background IP is the IP that each party brings to the process. For the consultant it could be the manuals / guidelines (for example) that they have developed and use. For the organisation, it may be company policies and procedures and planning documents, for example.

Foreground IP is the IP that is generated when you put the participant’s background IP together to come up with the results of the futures process. So, for example, this could be systems diagrams or the scenarios that are developed during the futures process.

Now, assuming that there isn’t an agreement between the consultant and the organisation, then each party will probably remain owners of their own background IP but (and this is a big but), depending on the laws of where you’re based, both parties could own the foreground IP jointly. Generally, this means that neither party can use the foreground IP commercially without the other party’s consent. As an organisation, you would be entitled to use the foreground IP within your organisation, but you wouldn’t be able to write a book about the process, that incorporates the foreground IP, and sell it … unless the consultant agreed to it.

So what’s the best approach to take? I would recommend that you put an agreement together, before the futures process starts in which you regulate who will own the foreground IP and clarify that each party will continue to own their own background IP.

3. Hack me that’s a Mouthful!

Indeed! But as a practical example, if you were to organise or attend a hackathon, it’s important to make sure that you deal with the issue of IP in documents relating to the hackathon. This may mean getting people to sign a document saying that, as the hackathon organiser, you will own the foreground IP generated during the hackathon.

But it’s important to bear in mind that you need to read the community who will be participating in the hackathon very carefully. You may find people object to transferring ownership of the IP they generate and don’t attend. So tread carefully!

4. Practical Tips

So here are some tips to dealing with IP:

  • It’s a good idea to know what IP you own. Sometimes you may need the assistance of an IP lawyer to help you determine what exactly you do / do not own;
  • When necessary, look at registering your IP, such as and trademarks you use, such as your company’s logo;
  • Review your employment agreements and make sure you have clauses dealing with the ownership of IP. Again, if you’re not sure, consult an IP lawyer;
  • If you’re engaging with a consultant, make sure you have an agreement dealing with the issues of background and foreground IP; and
  • If you’re going to be running / attending an event such as a hackathon, look closely at the issue of ownership of IP.

These are just some introductory thoughts and ideas on IP. Like I mentioned at the start of this blog posting, it’s a broad and interesting area. However, given the importance of IP these days, it’s important to make sure that you protect the “secret sauce” that makes your organisation function.

Thought from the Lifeguard’s Hut

Only one thing is impossible for God: to find any sense in any copyright law on the planet.

  • Mark Twain