July 9, 2012
The rationale behind this approach is simple.
The employee is paid to provide services for the benefit of the employer, and those services include creation of a variety of original works.
The wages paid to the employee are viewed as compensation through which the employer purchases ownership of the employee’s creative works.
That traditional model has been modified by a growing number of companies.
One recent example of alternative intellectual property rights strategies by employers was offered by social media company, Twitter, Inc.
Twitter implemented an intellectual property rights management policy which grants control over rights enforcement to the employees who created the property.
Under the Twitter policy, the company continues to own intellectual property created by its employees.
The company agrees, however, not to enforce patents and other intellectual property rights associated with employee-created works unless the enforcement action is defensive, in response to claims raised by other parties, or the involved Twitter employee specifically authorizes enforcement.
Under the Twitter policy, if an employee creates an invention, the company has the right to patent that invention.
The company does not, however, have the right to enforce that patent unless such enforcement is necessary to defend Twitter against claims by an outside party, or the inventing employee gives permission.
Various companies now provide employees who develop intellectual property some form of additional compensation which is directly connected to commercial gains derived from their inventions.
Some companies also permit employees to own intellectual property they develop if the employer chooses not to exploit the property.
Twitter seems to be the first company to grant its employees the right to control the enforcement of intellectual property rights owed by the company.
Critics of the Twitter policy contend that the policy places encumbrances on Twitter intellectual property which reduce the value of that property.
They argue that, in effect, Twitter no longer truly owns its intellectual property, as the company does not have total control over enforcement of the rights associated with the policy.
Supporters of the policy contend that it shifts control over intellectual property enforcement decisions away from business and legal professionals and offers it to the engineers and other technical professionals most actively involved with the property.
They suggest that those technical professionals are more likely to appreciate the importance sharing intellectual property in order to foster innovation, and to act in a reasonable manner facilitating open access and use of the material.
Technical professionals may be more understanding of outside use of intellectual property, yet they remain employees of their companies.
As employees, they continue to have a duty to act in the best commercial interest of their companies.
That duty may run counter to their personal preferences regarding intellectual property rights enforcement by their employer.
The fact that the employees have the ability to prevent enforcement of intellectual property rights by their company does not necessarily mean they have complete control.
If an employee were to exercise his or her right to prevent intellectual property enforcement in a manner that could harm the company, the employee could, presumably, be fired for placing the company at risk.
The Twitter policy offers an important contribution to intellectual property rights management strategies.
It is a policy which is clearly not appropriate for all companies, but it provides a useful model which should be considered by everyone who manages intellectual property.