Policy Brief: Copyright

In the consulting world, the issue of copyright ownership is often vaguely defined. If an individual consultant creates a product for a consulting firm, who owns the rights to the work? If a consulting firm does work for a corporate client or the government, who owns the rights to the work? The answers to these questions are found in copyright law (aka “intellectual property” law), a previously esoteric branch of legal expertise which has recently been pushed to the forefront in this new age of internet media sharing. Many sets of copyright guidelines have been produced to try and educate the public about copyright law and how it may apply to them, but sadly most of us remain largely ignorant of these (source: Copyright and the University Community; November 2004). Because the financial ramifications for violating copyright law can be up to $100,000 and the business consequences even higher (lost profits, branding, etc) (source: Copyright Law and Fair Use: Why Ignorance is Not Bliss; April 1998), it would behoove any business, particularly one such as a consulting firm that often deals with producing for-profit products based on the works of others, to write, adopt, and educate their employees about the organization’s copyright policy.

Because we’re dealing with a dual problem –the issue of first writing a copyright policy, and then the issue of training employees on that policy- this brief will focus only on the first of the two issues at hand. When writing a copyright policy, there are several important items to include (source: Drafting a Copyright Ownership Policy; April 2002):
Defines the "work-for-hire" standard.

• Provides a formal mechanism for establishing the extent to which the institution's (the company's) resources were used to create the work.
• Based on the above, the policy provides a clear definition of who owns the teaching works created, and/or clearly defines any shared ownership arrangement.
• Provides a clear method of dispute resolution.
• Provides a clear arrangement of any "shop rights" that will be granted to either the institution (the company) or the faculty (employee).
• Provides a method of training faculty (employees) on the components of this policy so everyone is "on the same page."

There are several options for how to go about writing such a copyright policy, the first of which would be to allow management to write a copyright policy for the organization, which would function in conjunction with the legal team. The positive aspects of adopting this strategy include the fact that having a legal advisor as a constant gatekeeper and final-say on copyright issues is certainly the safest way to go, and would virtually assure the organization would never be in violation of any copyright law. However, the negative aspects to aligning the company’s policy this way are that it is incredibly time-consuming and costly, and may not be necessary to always consult a legal source (source: Copyright Law and Fair Use: Why Ignorance is Not Bliss; April 1998).

The second option for how to go about writing a copyright policy would be to engage a group of “concerned” parties (those who might be affected by the policy) and collectively write a policy based on the numerous guidelines that are out there on the web today. The positive aspects to writing the policy this way include a buy-in from the copyright policy stakeholders, the fact that it’s cheaper and less time-consuming not to have to consult a lawyer for each and every copyright question, and the fact that “using [guidelines] as a benchmark is evidence of an "honest belief" that a given use is "fair use" (source: Copyright Law and Fair Use: Why Ignorance is Not Bliss; April 1998) which in itself assures your employees' aherence to copyright law. The negative aspects to drafting a policy this way include the fact that the guidelines in themselves are nebulous and are, in fact, only “guidelines” that are not admissible or defensible in a court of law. In order to draft the policy as a group, a great suggestion would be to begin with a known and accepted set of standard copyright guidelines, and allow your group to collectively edit them and modify them towards your organization using a wiki. This would assure full participation and buy-in, and would allow you to track changes and get legal input all at the same time.