Us vs. Them !

For freshers, understanding the complexities and nitty gritty of a job contract is usually not possible. And moreover as pointed out by many other participants, they are not in a position to bargain and are rather excited about joining a new job. So it is at this time that the recruiting company try to get the most out of the employee as we see is the case in the IT industry. So empolyee turnover is quite high here and most of the people who work here ,lose interest due to the demanding nature of the job. Companies also don't complain as long as they have a huge applicant pool. But this can be more widespread only in jobs which are more of a manual in nature and doesn't require much of a talent, skill and experience. This also creates a feeling of "us vs. them" mindset in the employees.
Once this happens every party would have a mindset of outdoing the other party as we can see is happening in the ICC case given. The focus is shifting from the game to commerce. The true essence of sportsmanship is shifting from hardwork and effort for the game to business and profits. But the question is how long can this be sustained if the core values themselves vanish!

Breaking the rope.

The case shared with us “Indian Players refuse to sign ICC contract”, demonstrates how as an employee we can negotiate with our employer (ICC in this case) to pull off a better deal. However, I would like to add that there were only a few teams (apart from India, there were Australian and South African team) who refused to sign the contract, whereas there were teams like England and Pakistan who signed the contract without any hotchpotch. I made this argument to highlight my point that unless you are highly competent, it is very unlikely that you can pull off a deal customised for you. From my past experience, I can add that it was impossible for me to have asked for such a deal as around 10,000 people joined my organisation that year and 387 associate itself on that day and being my first job, I was rather excited to join the organisation than to argue with my HR. Saying that I must also add that there was a idea forum in my organisation where every employee was encouraged to bring about innovative ideas be it in technological process or business process and credit was given to them, needless to mention these credit were meagre in comparison to the revenue earned by the organisation from that innovative idea.
However, as we scale the corporate ladder and gain competency, surely I can say that many of us won’t hesitate to pull off a better deal from our employer to nurture our innovative ideas or rather let go the job.

Intellectual Property Right is the temporary grants of monopoly intended to give economic incentives for innovative activity. IPR exist in the form of patents, copyrights, and trademarks.
Indian players earn in the range of 3-5 crore through a single endorsement. The amount they earn form individual sponsors is much higher than what they would have earned from match fees and official logos for years. Here the conflict of interest between ICC and the players was regarding a particular clause in the contract where ICC sought to protect the sponsors of the Champions Trophy from ambush marketing. Indian players denied signing the contract which forces them to relinquish all intellectual property and personal commercial rights.
At a first glance, it seems that players are giving too much importance to individual sponsors and representing the country is not that important for them. But by signing the contract they will violate the existing contracts with individual sponsors which may put them into trouble. Moreover, the new will be valid from 30 days before the tournament to 30 days after the tournament. Players correctly pointed out that signing the contract was already a violation as less than a month was remaining for the tournament.
This is not a new thing in sports. In 1996 world cup, many Indian players refused to take drinks from official sponsors of the world cup Coca Cola as they were already endorsed to Pepsi. Here BCCI has already signed the contract without consulting the players during Muthiah’s regime as claimed by BCCI president Jagmohan Dalmiya whereas Muthiah clarified that the controversial clause was not there while he signed the contract. Hence BCCI has not followed the proper procedure before signing the contract. They should read it carefully make necessary modifications then sign it and keep a copy with themselves.
Here players are in a position of negotiation as they are essential for the good performance of the team and they are also getting support from players of other countries. But same may not be the case for normal employees joining in entry level positions. It may be the time for more stringent laws to protect the individual innovations and make employees aware of their rights.

IPR-Crusade against the anarchists

The past few years has witnessed a tremendous surge in awareness of Intellectual Property Rights in India. Cases of conflicting interests, arm-wresting the law, and a general awakening among masses has ushered in a new era of identifying and protecting one’s rights, popularly known as the IP era. The present case at hand of IPR conflict within the Indian cricket community has drawn both flak and applause on all parts of the parties involved- The original ringmaster International Cricket Council(ICC), the overwhelming patron BCCI, and our own bravehearts , the Indian Cricket Team, a.k.a Team India, and the mighty sponsors, without whom any major sporting event would be dead as a dodo. I would like to reflect upon the interests of all of these parties in order to come to a conclusive scenario.

The ICC being the parent body of world cricket, had obvious reasons to enforce such a controversial contract. They had signed a magnanimous deal with GCC regarding sponsorship rights to the tune of $550 million USD. They could not have afforded to lose out on the tremendous commercial opportunities riding on the event. With cricket evolving from a few nations’ sport to a wide spread fan following comparable to the indelible fanaticism of football, they were left with no other choice but to pay heed to their sponsors’ whims and fancies. Even widespread rumours were that ICC was more benevolent to white nations like England and Australia, whose cricketers are the most paid than any other nation, and that they adopted a wily step-son attitude towards Asian countries, especially India. Such feelings could be well evinced following the Ashes series between India and Australia, where Indian players of the godmen-like statute of Sachin Tendulkar, Virendra Sehwag and Harbhajan Singh were implicated with allegations like ball-tamering and breaching the code of conduct of cricket. All the parties involved here had their own interests to protect, only that they were on the wrong side of each other.

The BCCI had to its own interests to resolve. Being the wealthiest cricket board in the world, it generates more than half the game’s revenue. No prizes for guessing that they would muscle with the ICC to protect their player’s interests and stamping the myth that India rules cricket. Also they were concerned that had the players remained adamant to their demands and refused to sign the contract, and the ICC actually barred them from playing, the revenues that BCCI would end up losing because of a steep plummeting spectator interest would be nothing short of nightmares. Not only that, they would be liable to pay damages to sponsors, which could well be ten-fold had the full Indian not landed in Sri Lanka. The then BCCI president claimed that the BCCI officials were forced to sign the Participatory Nations’ Agreement, muscled by the ICC. These controversial players’ Terms led to a serious standoff between BCCI and the players, as a particular advertisement clause 13 barred players to endorse brands which posed potential threats to the official sponsors 30 day before and after the prestigious ICC tournament. It imposed a telling blow to IPR rights of the players, as what brands the players chose to endorse is a matter of Fundamental Rights imparted to them by the Constitution Of India. But this IPR right could not be preserved as, Team India were but minnows compared to the mighty governing body of ICC. At the end, Team India had to take field signing the document.

A last-minute compromise deal ensured that all players agreed to the terms. The block-out period was reduced from 30 days to 16 days. One more case of IP rights biting the dust.

As for the players, I opine that they could have sorted out the imbroglio by considering the nation’s interest and pride before their own. But then, Its understandable that they also, for all the media hype and hoopla, embossing them as tiaras in the nation’s jewel-crowned head, are mere mortals and have their self interests to suffice. Also, several Indian players would have been more affected from loss of their contracts than other nations, where such brands are lesser known. There was also issues of lack of patronage. The players were left to fight for their own rights. Initially the BCCI defended them, but later as they felt the heat from the top boss, they chose to desert their own team. They were not even allowed to appoint a spokesperson on their behalf. The contract row actually extended further till world cup 2003, where the entire payment due to India from the World Cup was held back for refusing to sign the original contract .But then they should have reasoned that had they not actually played in such a coveted tournament for only commercial reasons, not only would the nation’s pride be shrouded in clouds of criticism and ostracism, the players might have to face exclusion from future tournaments and lose more than what they could have gained. Also the fact cannot be refuted that a player is only worth his present performance, once his feat becomes lopsided, no major brands would approach him. We can surmise this from the pathetic turmoil Saurav Ganguly was left in, post his spat with Greg Chappel and poor form. So I support the players’ rejecting to compromise with their basic rights, as they were merely safeguarding their own commercial interests. The players should be conscious that while the tournament sponsors are of reputed brands, advertising about their competitors would not be taken down smilingly by the officials and the marketers, more so when the stakes are so high and so many organisations are participating.

At this juncture, we ought to look at the key ramifications needed in this context.The negative side of the story is quite evident. Technically, every citizen has the right to safeguard his IPR at any cost, depending upon the constitutional framework of his country. The players were bullied into acceding their rights to a stronger body. They were definitely not at par with such a huge body as ICC to negotiate their case. The ICC should have made the offer subject to negotiation, as the players were subjected to huge losses from their previous endorsements. Once the seemingly party conceded to the demands, the more powerful one can always “negotiate” with other legitimate deals next time round. Cases where the top management actually bows down to the weaker party’s claims would as rare as counting hen’s teeth. To buttress my claims, we can as well take a look around numerous instances of non-negotiable offers in corporates, where the employer simply tows down the employee at his own free will, at the pretext of “working under him under the prescribed working hours”.The issue covers a wide domain, from salary wages, promotions, bond periods, outsourcing to even open source.

All said and done, one cannot be naive enough to ignore the positive effects of this issue. The ICC saw to it that the tournament took place, albeit after some delay, and that the full Indian team played it. The larger interest was saved. It also championed the need and right to knowledge among the citizens, and many cases followed hence , where the administrative bodies had no option but to impart data concerning the public at large, till then hidden from public eye. Recent developments in entrance examinations are glaring examples where the officials had to divulge details regarding the selection processes. It has opened up many avenues for the public to know exactly how efficiently the system is functioning and fixing the loopholes.

Such IPR issues will continue to occur as long as the system and the players in it have interests at loggerheads. It calls for a resounding and mature settlement of the issue without washing dirty linen in public. It only makes matter worse.

Striking a Balance

There is a need to come up with employment laws or contracts which could cater to the interest of both employees and employers. From the employer’s perspective, there could be a chance that employee giving more weightage to his other innovations and thus his work for which he is being paid off might get affected. Also as mentioned by Priyanka, there are some confidential information which gets stored as the employee’s intellect, crucial for the success of the business and if employee switches job he could leak out that information. Whereas if we look from employees perspective, they are not given due credit and all the credit and ownership of innovation done by employee is taken away by the company.

So there is a requirement to balance both sides and create a win-win situation for both the parties. Some companies give healthy remuneration to the employees for innovations or development of ideas as mentioned by Gladson. And there is a company where only a single person gets all the fame for the work done by the employees. I think that companies should realize that doing the same sort of work repeatedly make things monotonous for employees and affects their interest level. For that companies should take initiative to sustain high level of interest among employees towards the task assigned to them as part of their duty. It should also encourage them for creating new ideas by giving them their due credits. And on the employee side, he should give due importance to the task assigned to him and must give credit to the company for providing him resources that helped him in his innovation.

I feel that employees should exercise the power of freedom as mentioned by other participants. However, I am not in total agreement with Varun. A person is surrounded by many factors when he joins a job and on most of the occasions he is not in a position to exercise his negotiating power due to unavoidable circumstances. In that case, he has to join the job. However doing this, he would lose his creativity.

Thus I would like to end by repeating my words that, if a proper balance is maintained then interest of both employee as well as employer can be sustained.

The power of the bargaining power...

When we talk about the bargaining power of some people with respect to the IPR , certainly that holds. I shall bring to the fore an example from the music industry where the famour playback singer Yesudas ( who sung the song gori tere gaav and hindi album chamak cham ) who has the credit of lending his voice to more than 15000 songs , claimed for a royalty for every song sung for a live show performance by the other singers and when the media asked him the reason to stage this claim at this point in time and not anytime before , the artist simply said that he is making efforts to consolidate the Intellectual property rights and thus came the claim.When the media brought out this story , there was a huge uproar from all the artists who used to sing his songs in stage shows and earn recognition for thier talent.Finally this issue was put down by the artist himself when he backtracked his statement and denied making this claim when he felt that this issue is taking a toll on his image.
Was he making the right claim when the production of music entails creative contribution from the composer , director , lyricist and then the singer of course. What really prompted him to claim as when he is considered to be the veteran where he has sung more than 15000 songs Had he taken this issue to court , would he have won his case and set a precedent to all artistes.Can a new singer or a latest sensational singer like Mohit chauhan having sung just a bunch of songs can raise the issue of his IPR and take a claim on the royalty? If at all he makes the claim on royalty , he shud be making a claim on a song which wil be a copyright violation of some other genuine music composer !!
Also another example that I would like to cite is in the case of making of taare zameen par film where the due credit of the story for amol gupte went to aamir khan . the former was given the title of creative director and sidelined.When Amol gupte was approached by the media , he said that though he is hurt for not getting the due credit , he is not ready for a confrontation. Why shud not he go for a tussle when the script and story is his IPR? If had he proceeded with this , that would simply mean the end of his career. there are many instances when budding artists , screenplay writers who approach the producers with good storyline will be asked to return with the same story after some time. By the time , the aspiring and promising screenplay writer meets the producer again with a ray of hope to make a career out of this , the story would have already turned into a film getting ready for the release. Contract agreements even made to protect this kind of infringement of IPR would spell meaningless if not enabled by a good bargaining power.The context of negotiation between two parties will not be only defined by a contract or any sort of commitment when the power parity is not even., as we can definitely correlate this example with our heroes in which 7 cricketers agreed to this arrangement while the top 3 cricketers were excluded .

Caution and Clarity is the way forward...

In the case at hand it is very evident that ICC wants the players to act as per their wishes and wants them to sign a document which relinquishes all of their intellectual property and personal commercial rights or else they can’t play for the country. Now considering the short careers that the players have, it is unjust on the part of the ICC to restrict the players from signing any commercial contracts, which they have earned through consistent high performance, until and unless it is impacting their game. If ICC tries to coercively make them sign any such document, it might directly impact their performance. As pointed out by some participants, the bargaining power with the employee depends on the relative importance of the employee in the organization, which was high in case of the players and hence they were in a position to raise their voice. Every employee may not enjoy a similar position and hence it is extremely necessary an employee should exercise caution before signing any contract. As discussed in the class, one should try to get the contract altered as deemed necessary before he signs it and in case that is not possible either one should command a price for the compromise or one should try to look for other organizations. Also, it is extremely important that an employee should be aware of his rights and should be extremely clear on the distinction between when he owns his work and when the employer does. As part of one’s job, if an employee drafts a newsletter for a company then the company and not the employee owns its rights under the “work for hire” clause. However, if the employee writes a novel or develops a computer application which isn’t his job in his spare time, then that’s owned by the employee and not the employer.

Weigh your options while negotiating

Before writing in this forum I thought of going through the job offer letter which I had received before joining India's largest manufacturing company. I am reproducing a few lines out of the various terms and conditions, "You shall not at any time engage in or be concerned with or be interested, directly or indirectly, in any business, work or activity other than that of the Company or commit any act prejudicial to the interests of the Company and/or its business". And suddenly I started to realize the gravity of what these words could mean if I ever wanted to indulge in Open Source Development (OSD) Activity. I guess most of us would agree that we did not know that such terms and conditions exist when we first landed with an offer letter or never cared about them. So I think knowledge about these terms is the first weapon required during negotiations. Secondly while negotiating you may land up in following situations and act accordingly:

1. You tell the company about your intention about OSD activity, the company agrees to give you freedom and so the contract is framed accordingly.

2. You tell the company, but it does not agree. You weigh the options and find that job is more important at the moment, so you accept their terms and conditions.

3. You tell the company, but it does not agree. You feel that your interest in OSD and your freedom are more important, you leave the company and find another company and start from step 1.

About the negotiating ability, I think at the outset of their careers most of the employees are not in a strong position to negotiate but as they prove their worth and become key resources, their negotiating ability increases.

CALL FOR GREATER FREEDOM

Somehow I feel that today major out flux of professionals from the IT industry is due to the stagnant nature of work they are pursuing. They work long hours doing the same work they have been doing.The job becomes monotonous and boring. They don't even pursue their own creative urge because everything which they eventually turn up creating would be the company's copyright.
There is a need for greater creative freedom in terms of the individual's rights. Certain laws should be there to provide a greater right to the individual because I feel that a company's resources are there for everybody. The company is not affected if a person is doing his regular stuff or creating something new. So, when he takes an extra step in developing something new, it must be his own decision whether he wants the company to take forward his idea or he starts to implement that idea on his own.
The idea is to give greater intellectual freedom because any individual who has a bit of self respect wouldn't remain in the job if his/her creative needs are not getting satisfied. The company, thus should be instrumental in developing an individual not being a hurdle in their way.

"Experience" or "Ideas"

Open source development and an invention in the organization are a little different. Open Source is meant free for all. Who so ever can use it. But an invention can be sold.

As spoken in class many of us might not come across inventions throughout our life time or our working careers. But there are other things that we do new at our work places. The concept of suggestions, Quality control circles and six sigma where in we improve the existing system or make a new system depending on the level we act upon.

For example in my previous office we had suggestion, QCC and six sigma targets in my division. Like turnover targets we had to give approximately 70-80 suggestions, 15 QCC’s and around 4-5 six sigma presentations. Now these are also ideas that are generated in the company and are used by the company. Now for example an employee moves from this organization and has got a job elsewhere he uses these ideas, suggestions that were implemented by him and his peers from the previous organization in the present organization as his own ideas. We call this as “experience” of the employee. This never comes in any agreement or contract that we sign with the organization.

Employer's perspective

I do agree that the employees need to have the credentials to be able to bargain and influence a decision in their favour. But when we look at the scenario presented or any contention between an employer and employee, we need to analyse it from the perspective of the employer as well. Here I agree with the comments posted by Sunny that the employer also needs to be given the due credit of the intellectual property developed.
While we talk of open source development issue or any IPR issue, let us also look at the rationale of introducing such clauses in the contract. Most of us have been in the favour of employees where their sovereignty related to their knowledge and innovation cannot be breached upon. But there could be a scenario where in the employee extends the research, code developed by an organization for further innovation. If these codes are available in an open source environment, then the company may lose its competitive edge and the costs associated while developing these new platforms. This matter takes a subjective outlook since the company has no protection against its own intellect property that it shares with the employee. There are many organizations which require the employees to sign a non confidentiality agreement regarding the platform and source that they work upon. It really depends upon the employees to abide by the agreement but then it offers the employer to contend litigation if a breach is known if such confidentiality is crucial for business success.

Its all about options and market value

I remember the day when I joined fresh from campus in a software company, we had joined in a batch of few hundreds and in the orientation day we were given to fill up lots of forms, I might have signed a contract then, sincerely I don’t remember, probably the excitement of joining overshadowed everything. After working in the organization for some time when I got a chance to switch job, I could demand a lot more things, my negotiating power had increased, based on my value in the market with regards to the skills I had acquired in the past few years and I was able to negotiate many terms with my prospective employer. Basically what I am trying to point out, as most of people in discussion above have pointed out, the negotiation power of an individual depends on the person’s value in the market, not everyone have the liberty to bend the contract.
When the options available are plenty players or for that matter anyone is in the position to bargain. If we look at the current scenario in the cricket world, with the success of IPL and other cricket leagues players have plenty of options to choose, some are even giving up national duty for the sake of league games so given a situation to sign a contract now, the can obviously bargain the terms and conditions.

Sector subjective intellectuals...

ICC’s high handedness at not involving its most important stakeholders (the players) while imposing the prohibitive sponsorship mandates for the Champions Trophy was evident in the uproar raised by players (primarily Indian icons). BCCI tried to mediate the deadlock, by convincing players to sign the agreement for the tournament alone (as part of its commitment to Participatory Nations Agreement 2002 according to which each board was to send its best players for the tournament). The case poses a conflict of interest between the regulating body (ICC), which assumed it had unilateral control over the players and their brand affiliations. Reason behind imposing such an agreement could be ICC’s perception of being a ‘pseudo employer’ to the players (a possible anomaly considering its autonomy over cricket affairs round the globe). The issues related to the details and subsequent negotiations have been elaborately detailed in previous posts.

The context poses another perspective regarding the stature, criticality of role in the team and overall iconic status of the players who voiced their concern with the ICC’s clause. Clearly none of the novices or the lesser players of the cricketing arena did have the ‘bargaining power’ to make their concerns heard. Cricket boards succumbing to players’ bargaining power is evident in West Indies’ top cricketers collectively signing out of bilateral series commitments (recently against Bangladesh) over the issue of contract amount signing. “Stakeholder’s concerns should be accounted for while penning down any contract” – this can be inferred from the context. Here the case relates to scope of work, compensation and brand affiliation of the stakeholders involved. Thus our cricketing heroes can be ‘accused’ of instigating the activist within each one of us – who doesn’t hesitate to make his voice heard, in the face of high handedness (of regulatory body in this context).

Regarding freedom with nature of work or ownership of efforts, I had no knowledge whatsoever regarding the distinction between efforts spared (for personal cause or employer’s) when I signed the joining letter. I would never have given a second look at the contract, had it not been for this course – thus happily signing all documents ignoring all such potentially restrictive clauses. Maybe this beginner’s approach to signing job contracts would be concurred by most of graduates where getting your name registered on employment rolls is of paramount importance than the words coined in the contract. Job activities although doesn’t require creative skills; however project related activities required developing of automated tools and scheduling scripts (created from scratch). I would never have given any thought towards ownership of my efforts (had it not been for the ER course). Now I wonder what would happen to IT industry if each employee tries to copyright his code/tool (or any unique effort) or at least try to modify the relevant clauses of employment contract to accommodate his freedom – perhaps this would spell doom for the booming sector and make everyone’s life/business worse.

If we look at issues of proprietorship, instances from the highly creative movie industry can throw a few insights. Certain production houses mandate non-disclosure of script, cast details. The actors (through whom the creativity of the script writer/ director is being presented) though are ‘speech bound’, yet their appearance in public with the script specific physical appearance, creates Page 3 headlines. Public speculations regarding the script or media spoofs regarding the plot could possibly lead to IPR violations, with the public and media being collectively responsible for violating the same. While the same actor and his display of the movie's character might be for promotional and branding purposes.

Perhaps the inference of ownership/proprietorship being industry and sector subjective holds true. The same norms of IPR and TRPR violations are not universally applicable.

My experiences with patents and new ideas

Today jobs have become such that everything one does has to be different to the standards.Innovate to survive is the motto companies want their employees to
follow. Companies like Apple,Google,IBM have specific contracts with their employees for intellectual properties . Employees get a sizeable sum of money for each patent they file.
I was working in IBM and there was a drive for new ideas and for each file(patent) there was a sum of $1000 paid to the employee and though the money offered got reduced with each new idea,each new idea/patent generated contributed to the appraisal ,a change in designation and a better reputation. This seemed fair enough as the company had to pay a good amount of money for each patent filed with the USA Patent and Trademark office . What if the idea submitted by an employee got used by the company for a product which generates a lot of revenues or by any other company and that company is making huge profits. Now a company like IBM tried to be fair and gives a small share of the loyalty to the employee as there is a rare chance for a idea to get integrated in a product and succeed. But what if the employee has worked on an idea totally outside his work domain and not related to his job at all .Then the employee still has an
opportunity to file the idea directly at the US PTO but the employee has to pay the registration charges by himself and ofcourse the employee would be entitled with the full royalty. I think nowdays with the companies and employees both knowing that innovation being the order of the day, both the parties know clearly about the clauses and the contracts signed related to IP. A company which wants its employees to think freely gives the full freedom to the employees of course keeping in mind the advantages for the company and similarly the employee who knows that he has the ability to develop IP's makes sure he gets the best benefit from his contract. IBM also had separate open source contracts that had to be signed by employees too to make sure that employees dont get inspired by company techniques and write new concepts inspired from company materials. So the employees have to make sure that when they sign the contract it
satisfies their freedom to explore and if it does'nt the individual should only agree for a contract which presses forward mutual benefits and doesnt cause any disadvantage to either of the parties.

Standing Up For Their Rights

In our country where cricket is not just a game its religion, the BCCI (Board of Cricket Control in India) has been very effective in the marketing of cricketing events. Today everything connected with Cricket is considered a “Property” of the BCCI and used as an instrument of “licensing for a fee”. This has been possible because of excellent Brand management of BCCI. The high brand value of Indian Cricketers is not only due to their competence and performance and ICC rating but BCCI’s positioning of the Cricketing events as well. The BCCI is one of the strongest members among the ten full members of ICC. Since the BCCI provides a platform to the individuals to build their career and individual brand, BCCI expected that the player will do everything as per their guidelines. But the opposite happened players were more concerned about their individual agreement with the sponsors. Keeping the concerns of the players in mind the BCCI proposed them to sign the agreement only for the Champions Trophy, after which it promised to take up the matter with ICC (Perhaps BCCI realised the fact that most of the players are having individual contract with several different sponsors and signing the current deal will lead to several undesirable consequences). Players still refused to sign by giving their arguments.

The ICC also behaved in similar to the BCCI without consulting the stakeholders with the assumption and belief that they are the international governing body for cricket so everything they will say the members will follow. As this was the prevalent practice earlier. Perhaps ICC also believed that the existence of BCCI and their phenomenal success is because of their association with ICC. The degree of importance of ICC or BCCI can’t be denied but as a parent organisation their behaviour towards the stake holders was really questioned by the Indian players. I am not covering the player’s perspective because I have similar views as given by other participants.

The key learning we can have from our heroes even if they had an agreement with BCCI it can’t rule their own fundamental right to their involvement in off the job activities. Also there may be certain clauses which can be self contradictory as mentioned by the players that "The ICC restrictions are overly broad, covering not just the Champions Trophy but thirty days before and after. In the present case, therefore, by simply signing the contract, the ICC could already allege breach," the players said, pointing out that less than one month remained for the start of Champions Trophy. Also one should Never ever underestimate own brand value and rights at the same time one must keep the individual professional commitments. When all the players raised the issue together they have a unique strength which made the BCCI to consider the issue seriously. Similar situations may arise in real life IPR issue related with employee & employer at work place as well. It becomes very difficult for an individual to raise their voice so collective efforts can result in better deal. An average employee in traditional sectors is not good at managing his/her own brand and neither has much knowledge about IPR related issues and also the language used in the agreement. I was not aware about IPR related issues despite working for almost five year now I able to relate the issue being discussed to the real life situations.

Exercise the “Power of Freedom”

Are we slaves working for organizations or employees of organizations? The way organizations try to exercise their right upon any piece of work or innovation by an employee, they try to enslave us. Companies just try to inhibit our right of freedom by entangling us in the quagmire of legal contracts. We get paid by an organization because we deliver some value to the organization. It is out of our work by which organizations make profit to sustain & grow further. So how can an organization exercise any right over any individual piece of work by an employee, unless it is sponsored by the organization? It is against the basic essence of freedom & if an employee is doing some individual work, he/she should negotiate with employer to remove such a clause from the employment contract which inhibits such freedom. As a matter of fact, every individual is not influential or powerful enough to bargain his/her contract. But every individual can exercise the “power of freedom” by leaving such an organization & joining some other organization, where he/she can negotiate the terms of contract. Some organizations will always try to take advantage out of such situations, so it is up to the employees to take the right step at the right time & exercise their “power of freedom”.

Position gives bargaining power.

Basically the bargaining power come from what position the person is holding. If someone joins as a fresher, basically he will have no bargaining power. As said in the class, mass recruiters like Infy, TCS, and Wipro won’t give bargaining power to anyone. As they hire in thousands they wont change their clause for few people. But after someone has gained worthy experience, becomes a critical resource, he will be having the bargaining power. Like Indian cricketers, they know that they have a lot of bargaining power, if the same thing would have happened with Indian hockey team or football team, things would have been different. Recently hockey players were penalized because they wanted a change in their contracts. But if the cricketers would have done the same , no one would have been able to penalize the.
But looking at the innovation thing, basically if the company tries to own everything a employee innovates, there won’t be any motivation from employee side to innovate. This will be a lose lose situation for everyone. Even if employee innovates, he will definitely leave the company and join a company which will recognize the innovation. As we see in both the cases, current employer will be on the losing side. So there has to be a compromise formula between the employer and employee which will be beneficial to both the parties. Some American companies allow employees to do their own projects. And Wikipedia, Google maps are few of the innovations. That way should be followed.

The views from other posts clearly states that the fundamental issue here is not money but realization of the fact that ICC owns the events and not the players participating in the event. Indian players refusing to accept the term clearly sends a signal that ICC cannot enforce its views on the players.

Indian players in question were already in terms of contract with competing brands sponsoring the ICC. To rake in the big bucks ICC not only prohibited players to endorse competing brands for the duration of match but also 30 days before and after the trophy. This strategy is used by brands sponsoring the event to monopolize their products in the mind and heart of viewer. India, Cricket is religion and viewership is maximum during the time of event which increases sales of sponsoring brands.

There have been many other instances where the strategy of promoting the official sponsors has been taken up by event organizers and the players have agreed to the terms of the contract. The reason for agreeing is backed by the event organizers who put the interest of the sport first. They are willing to compensate for the breach of contract of individual players. Why should players stop endorsing the brand? They understand the fact that best players need to play the sport and they have no rights to interfere in their personal endorsement deals which earns them money. Hence appropriate compensation should be done if there are any such clauses in the contract.

The statement by the Indian team sends a message across that the team wants to play but their hands are tied due to¬ the ICC’s dictatorial demands. The ICC has no rights to stop players from fulfilling their previous contractual obligations without adequately compensating both the players and their brands. Given the small time frames that sportsmen are active, the ICC should understand the players’ rights to earn as much as they want to during their short professional careers instead of alienating the very players they are supposed to protect.

Yes, we can definitely learn from our heroes. Any concerned person can put forth his/ her unwillingness to sign a contract. I disagree with the fact that only the ones who have edge (like students from IIMS or famous players) can ask for changes of clause in contract. As already cited, in IT industry, the new entrants hardly know what the contract holds. When I joined my first company, I was more excited to work and earn rather than look into employment contract. As and when you understand your work, you may feel the need to innovate. This is when you realize that there are clauses in your contract that stops you from doing that. I believe passion is driving force to innovate. So a new entrant may know what he is good at and may demand change in clause in employment contract. The capacity to bargain also depends on business environment. One may be into open source development in a field not related to present employer. Still there are many companies that prevent their employees to take these kinds of initiatives. They believe employees may devote more time in other business activities and their mind might be preoccupied. Thus industry wide practice has been varied when it is related to IPR, so it is better to put terms and conditions clearly beforehand to stay out of legal issues.

The Common Man: the new superhero

For the past few years, the ICC has been trying to promote cricket in non-playing countries. The BCCI is the riches cricket board in the world. It is primarily dependent on the Indian cricket players for its revenues. Almost all of the players can afford the services of consultants and lawyers who advise them on the contracts they sign. These were the primary reasons for the bargaining power of Indian players.

Looking at the interest of various stakeholders, should there be a limit on the number of endorsements that a player can do so that such conflicts can be avoided and one can focus on cricket? Shouldn't players not become bigger and important than the game itself? Wouldn't it be great if our cricketers translated their on-field heroics to off the pitch by aiding and improving the dismal situation of Indian domestic cricket and other sports as well.

Coming back to software professionals, as pointed out by Santosh, software professionals in their early career will not have the kind of bargaining power to alter contracts especially when many organizations recruit in bulk. Research has shown that an individual is at his creative best and full of ideas till the age of 25-27. Thus, by the time most professional would be able to be in a position to bargain, they would have already moved out of their creative phases. Also, early on in one's career, one has more free time on hand since one is free from family and social obligations. And hence this is the time when an individual needs to be given the freedom to explore and pursue things that he/she is passionate about.

Its time for the Common Man to take the lead. Its time that individuals in top management acted as heroes and created a culture that supports employees and innovation.

As already pointed out by Ritesh, Google is an organization that promotes and rewards innovation through its '80-20 innovation time-off model'. And it has been this very policy that has given rise to projects and services like Gmail, Google News, AdSense, Orkut etc.

Maybe its time, a Google - our hero in innovation - came up with an innovation that would benefit things like the open source movement. May be a service to educate and empower individuals and establish a level playing field that fosters creativity and innovation.

Rules of the Game should be defined

If a person does an innovation which is pertaining to the work/ project he is involved into, then information/revenues etc should be shared with the organisation. However, if the innovation/intellectual propery is nowhere related to the domain of work the person is involved into, then the organisation has no rights over it. And for this particular clause the person can claim the bargaining power while signing the contract. Although it may not be feasibly possible to look into each and every word with miniscule detail in the written contract, however contracts do exist in verbal form also and not written alone. So, the employee may orally enter into a contract with the employer to the above condition.
In the case of our Heroes discussed here, ICC and BCCI wants to make the player dance to their own tunes with regard to commercial adds. The very purpose of BCCI is to see that their players perform well in cricket and should not interfere, how much money they are earning from commercials. They have no rights over that. Consider a hypothetical situation. Prof. Ganesh wrote some articles/ papers/journals/won awards, did innovation got patents and one fine sunny day, Director and Dean came smiling at IIM-A alumni, avowed, “Look Prof. Ganesh, you did a great job by doing innovation and bringing laurels to the college, we may consider for your promotion, but all your works has to be relinquished to the college”. Now what will Prof. says? Will he agree to the above said demands? Will he simply let all his awards gathered through unremitting ceaseless efforts just slip off? Similarly, although a player may be part of the BCCI selection playing 11 team, even then it is his sheer sweats and exertions which reflect in his performance that makes him get the commercials, so, BCCI should have no official rights/concern a player may get extra income from any other legal sources.

Company's way to exploit IPR

As is rightly said by earlier participants that the person who has more power to negotiate due to any situation be it market conditions or union can turn the deal towards him. But in real sense negotiations can be successful only if both the parties agree to a particular thing mutually.Eg. If ICC is successful in making the players sign the deal by coercing then it can be reflected in their performance. If player does not feel empowered enough he cannot perform well. Here in this case when we talk about IPR, I guess players have full right on their personal commercial rights. Only playing for their country is included in their working hours and rest all time is their own. Moreover in this case they are already in contract with respective companies and if they sign this contract they will be breaching one of the contracts and can be sued for it.

If I take an example of Infosys, there you have to contribute two ideas about any technology in Kshop (knowledge shop) and that is linked with your performance appraisal. In the starting of the project your manager would tell you about his expectations which would include these documents as well. So, company can definitely claim rights on such things. In the case open source development you can bargain with employer if they want to use your ideas but in this case you cant. Your company can definitely use that knowledge in any way desired without even taking your permission. They might not even consider patting your back. So, as was the case i think a company cannot claim on your work if you have not utilized company's resources and signed any such contract.

Position matters

The ability to bargain greatly depends on the position of the employee. As discussed in the class when a big player like TCS or Infosys recruits people in hundreds and thousands there is hardly a scope for bargaining. But many a times we see few employees who are critical resources and they can manipulate the situation to suit them. Work for hire contract indeed retards the thinking process in most of the cases and the employee just works precisely to make money. But these issues of intellectual properties are not only the problems of today. I would like to bring in the example of Michael Faraday and Humphrey Davy in this context. Faraday was working as an assistant to Davy. During those days a physicist called Hans Orsted discovered the phenomenon of electromagnetism. Davy tried to design an electric motor based on it but failed. However, Faraday went on to develop a device using a wire extending into a pool of mercury with a magnet placed inside would rotate around the magnet if supplied with current from a chemical battery which could produce electromagnetic rotation. In his excitement, Faraday published results without informing about his work to Davy. Even if he would have consulted it, Davy would have taken the credit as happened with the development of some other devices. This incident spoilt his mentor relationship with Davy and he was removed from electromagnetic research for several years. But he continued his work independently and only after the demise of Davy he got the official rights to do research and then went on to discover the theory of electromagnetic induction.

Another instance few days back was the issue of remake rights with Director Murugadoss for the movie Ghajini in Hindi. Salem Chandrashekhar, the producer of Tamil version of the movie, felt that Murugadoss had not thought it necessary to obtain permission from him before starting the Hindi remake. The financial aspects were never been discussed and the remake rights not bought. So he threatened a lawsuit against him. Just like “work for hire” is the provision for companies not to lose any opportunity of making profit whenever a chance arises to do so; here also the objection was raised when the movie was ready to bear fruits. Movie could be released only after some mutual financial settlements between the two parties.

There are numerous instances in different companies where employees had to face injustice and companies owned the brilliant works of the employees immorally through the strong tool called contract. However, how unethical and immoral it is from the company’s point view is a topic to be analysed more. There may be certain conditions or circumstances where the company may be morally right while claiming the ownership of the work done by an employee.

give what you are paid for

The employer does not own everything you do by law – only by the contract you may have signed. So, it is important to read the contract well and consider ‘work for hire’ clause before signing. If it is not critical to the company, it may ignore. However if the company is not willing to reconsider, then one can either look for another job (provided it is available) or negotiate in terms of compensation.

In the case of our heroes, it is necessary to see from the perspective of different stakeholders. The primary objective of players should be to perform well in cricket. At the same time they expect to be given autonomy to use their intellectual property and personal commercial rights freely. However, the BCCI and ICC want to make most out of its authority to control and monitor any activity relating to cricket. Therefore, it sees an opportunity to earn revenue from the endorsement done by different players.

It should be taken into consideration that the general people from whom both the cricket boards and players earn their revenue are interested in the good game of cricket. It cannot be achieved by making the players unhappy or a deadlock between players and ICC.

The purpose of the ICC and BCCI should be to ensure the players perform well in the games. Therefore, their place in the team and compensation should be linked to performance while the players should be left free to exercise their intellectual property and personal commercial rights. Because these rights appreciate in value only if the players perform well. So, in the interest of the game ICC should reconsider its contract.

In general cases the ability to pull off a better deal, without compromising on the professional interests depends upon the power exercised by the parties involved. Whoever is in the better control of the situation will have the greater bargaining power.

Contract vs Innovation?

Innovation is very important, especially for knowledge workers like Software Engineers. Most of the Indian IT giants like Infosys and TCS have contracts with their employees, similar to what we saw in the story "Open Source Development", regarding the ownership of innovation done by the employees. Infosys for example owns the innovation done by its employees and rewards them by a meager amount of money for their innovation. Contracts like these definitely hinder innovation from employees as they know that they would not be rewarded for the extra efforts they put in. This is one of the reasons why there is so little innovation from Indian IT companies.

However, looking from the Companies’ perspective, if they do not have such a contract, the innovation done by its employees would be of no benefit to the Company. Is there a way out, so that the employee continues his innovation and the employer also gets its benefit as well? Can contract and innovation go hand in hand?

One way is to allow the employee to hold the patent for his innovation. However, there should be a contract with the employee wherein ‘Compulsory license’ should be given to the employer. In ‘Compulsory license’ the patent holder is forced to grant use to, in this case, the employer. The holder does receive some royalties, either set by law or determined through some form of arbitration. The employer may choose not to buy the license, in which case the employee is free to license the patent to others.

There are other ways as well to foster innovation, while having the contract. Companies like Google and 3M also have contracts with their employees but they have been successful as a result of their employees’ innovation. Google, for example provides its employees 20% time in which they are free to pursue projects of their choice. Some immensely popular projects like Orkut, Google News, Google Suggest and even AdSense were conceptualized and developed by Google engineers during their "20% Time".

So contract and innovation can go hand in hand, provided it’s a win-win situation for both the employer and the employees.

Stopping the employee to give his best

It is true that majority of employees are not in a position to negotiate with employers for the contract which they have to sign. This position or we can say bargaining power depends on number of factors which has been already discussed in last forum discussion. But my concern is that doesn't these types of contracts by which company owns the right to all work produced during the term of employment forbid employees to go extra mile and give their best. They knows that what they will get will be very little in front of what the organisation will be getting if they are producing anything out of their own interest. What employees do at job is for the sake of job. But if there is no such clause they can actually think in a different perspective and that will be beneficial for the society as a whole. As discussed in class, when the employees are knowing that what they will get in return is some extra incentive or a pat at the back, why they will indulge in any extra kind of activities. Aren't these kinds of contracts forbidding even whose few individuals who can really think differently.

Can We Learn From Our Heroes?

Dear Participants,


Today we started the new theme "You Are Hired!". Once again, we are dragged into the issues related to "bargaining" but the context is altogether different as the issues related to our discussion are intellectual property rights (IPR) and trade related property rights (TRPR).

One of the key issues raised in the "Open Source Development" case is the negotiating ability of the software professionals emphasizing on the fact that an employer does not own everything you do by law but only by the contract you may have signed. How many of us have the negotiating ability to pull off a better deal, without compromising on the professional interests, by critically look into the various clauses and analyze the pros and cons?

In this context, I thought of sharing with you the following interesting episode very much pertaining to our current theme discussion.

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INDIAN PLAYERS REFUSE TO SIGN ICC CONTRACT

Source: http://www.rediff.com/ 19th August 2002.

Indian cricketers on Monday night refused to sign the agreement for the Champions Trophy in Sri Lanka and accused the International Cricket Council of 'boycotting' them.

The players sent a letter to the Board of Control for Cricket in India explaining the reasons for their decision, which said, "We believe by signing the player contract, we are caught totally in the middle."

"On the one hand, we suffer exposure from the ICC/BCCI when they could allege non-compliance with our obligations. On the other hand, we could face exposure from our competitive sponsors who have paid us for the right to exploit our brand and image commercially," the players said in a press release.

"We have been told that unless we sign a document which forces us to relinquish all our intellectual property and personal commercial rights, we would be ineligible to play for our country in tournaments conducted by the International Cricket Council.


"We are put in a peculiar situation where we are not boycotting the ICC run tournaments but the ICC is boycotting us," the players said.


The players also rejected BCCI's proposal to sign the agreement only for the Champions Trophy, after which it promised to take up the matter with ICC.


"The ICC restrictions are overly broad, covering not just the Champions Trophy but thirty days before and after. In the present case, therefore, by simply signing the contract, the ICC could already allege breach," the players said, pointing out that less than one month remained for the start of Champions Trophy.


"We want to play. We are not asking for anything more than that we have been getting. We are just not being allowed to play much against our wishes," they said.
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Like the case of "non-negotiable offer" from Darrel Hair, What can we learn from our heroes from this episode?

How do we look at the issues related to Marketing, Advertising, Brand Management, IPR, TRPR, Compensation etc., from the perspectives of Players, BCCI, ICC and other significant stakeholders?

While trying to analyze the issue kindly keep the following norms in mind.

• There are plenty of materials available in "public domain" in the internet. However, one is expected to use the information wisely without making everybody suffer from information overload. Let me remind you from our FAQs that we, as a batch, value your original meaningful contribution and "copy-pasting from internet" would be treated as plagiarism and dealt with as per the provisions in PGDM Students MoP.

• Secondly, while trying to present the facts and contexts, let us try to be precise without arguing like lawyers. Let us keep in mind that too much of description of facts would confuse the readers.

• Thirdly, do not try to be solely focusing on what you have to say but lend your ears, eyes, brain and even your heart to what others have to say on this issue. As far as I am concerned, I am going to restrain myself, to the extent possible, from making any comment to allow you act as moderators of each other as a learning community. Build on the analysis of other participants. Learn from the experience of Dialectic Forum 01 - Non-Negotiable Offer.

• You are required to participate only if the topic interests you. While every participation counts, desparate participation does not! This also means do not wait till the last day to make your contribution. As mentioned in the FAQs, "Ordinarily, each forum will be kept open for a week", but it may be closed anytime before if I think there are sufficient number of contributions covering the signficant issues pertaining to the forum.

• Last but not the least, I have requested participants to display their unique id i.e., Roll number, if not the full name as in the attendance. But many participants have not conformed with the quest. Kindly go to the settings and change the display name with your roll number. Non-compliance will lead to natural omission of the postings for the purpose of course involvement.

All the best!

With Regards,
Ganesh