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

Corporate Reality...

Different types of bargaining offers in the real corporate world ...(From my previous employer)

1.) An associate gets a bad rating and when he goes to the manager to discuss about the same... he's assured that he would be sent to onsite within a month's time. Satisfied, the employee leaves.

2.) Another associate in the same team with the same problem meets the manager and he is told that he would be made the team lead very soon so a designation hike and thus an increase in salary. Employee is happy again!!!

3.) Another associate (with the same problem) is told that because one other person 'xyz' had a very bad rating in the previous appraisal cycle and if he(xyz) was given bad rating this time also, he would be thrown out of the company.. so, we forcefully had to give you a bad rating(to help the other person). Employee has no say..

4.) A lady associate worked till Jan of the year and went in for maternity leave just before the rating time, so was given a bad rating for she will surely not come back to fight for it.

5.) An employee gets onsite for otherwise he'd leave the company and there's no one to take care of the work done by him.. Employer's pain...

This is exactly what happens in the corporate world.. Either one is convinced or one is forced for both the parties have to come in to consensus .. may it be a pleasant one of a forced one!!!