“For many areas of knowledge creation, it is now the IP holder who must prove that their property is deserving, and there are a host of mechanisms – legal and cultural – to prevent that from happening.”
Intellectual property rights continue to be the Rodney Dangerfield of assets – they “can’t get no respect.”
The reasons are complex, but not terribly surprising, given the increased speed and importance of technology in recent years. Compounding the disconnect are many individuals and businesses who prefer to view IP rights as impediments, not assets that can be licensed or otherwise monetized.
In their mind, pilfering content, using someone else’s invention or borrowing a name or image is akin to a “white” lie that does no real harm. This myth has been perpetuated over time in different ways by other IP holders and consumers who would prefer not to pay for what they need. The result is a strangely inhospitable environment for IP that dissuades innovation and depresses value.
It fascinates me that, despite their differences, the same bad attitude toward IP rights exists for most creations of the mind—i.e., inventions, content and brand names. An extensive 2017 European Intellectual Property Office (EUIPO) follow-up study showed that people are bothered by the existence of counterfeit goods, even as they engage in illegally purchasing them. Consumers are adamant that plagiarism and copying is unethical, despite routinely sharing content like music and articles. Early industry efforts to enforce copyrights, beginning with Napster, were generally futile. But after years of abuse, publishers and their platforms are finding new ways to get paid for the articles, images and content they provide. Musicians who are not celebrities and are without leverage have been less fortunate, as are many inventors.
The onus on invention theft has shifted in recent years from defendants, obliged to disprove they had infringed patents, to licensors (patent holders), who must prove patentability. Presumption of validity means a lot less today than it did a decade ago. For many areas of knowledge creation, it is now the IP holder who must prove that their property is deserving, and there are a host of mechanisms – legal and cultural – to prevent that from happening. Patent holders became the “bad guys” when more believed they should be paid for what they own, and, for a time at least, billion-dollar patent awards were no longer unimaginable.
The common thread is that creations of the mind are not viewed by most people in the same way as real property and other assets. Sure, IP rights must be highly specified and may need to be defended more rigorously, but villainizing those who believe they earned a return makes it easier for serial infringers, both individuals and businesses, to perpetuate bad behavior. The digitalization of content and the Internet have rendered copying, conveying and using the work of others as routine as breathing. Some businesses would have us believe that it would be easier, if not fairer, if most inventions, processes, designs, content and names were freely available to everyone – most, of course, but not theirs.
Fostering a culture of respect for IP rights and creators is important enough for the Chinese to publicly designate it a priority. Beijing not only has established leadership goals for IP in 2020 and 2035, it wants the world see the nation is teaching students, not just young inventors, about the importance of IP and how it works. Whether or not these gestures are genuine, Beijing is keenly aware of the value of being seen as a nation respectful toward IP, as we are smart about how to secure and deploy it. China says that “The public’s awareness of intellectual property strategy increased from 3.7% in 2008 to 86.3% in 2017.”
Public regard for the three most common types of IP rights is more hostile today than 20 or 30 years ago. This attitude has been perpetuated by self-interest on the part of some industries and companies and fed by half-truths in the media and a lack of awareness on all school levels. The notion of “IP consciousness” is discussed in a slim but incisive new book, The Great Catapult, written by Zeeger Vink, a lawyer and IP Manager of MF Brands, (Lacoste, Gant) and former brand manager for L’Oréal, an active patent filer. (Between 2012 and 2017 alone the world’s largest beauty brand received more than 3,000 patents.)
“IP-consciousness is not something that can be imposed on and implemented by an organization through a single decision of its top management,” says Vink. “It requires steady and repeated action over time, such as company-wide IP trainings, regular IP reporting to all stakeholders, and intensive interaction between the IP department and operational divisions. While this requires the initial (and continued) support from top management, its execution will depend on the IP department and the extent of its mandate within the company.”
On first glance The Great Catapult (‘A Guide for the C-suite’) may appear to be yet another in a long line of corporate self-help books. It is actually something much more: a timely analysis of how broader awareness of IP’s function by establishing a strategic communications initiative sanctioned by senior management can play an integral role in generating return.
“Management and IP departments should therefore develop an IP-consciousness roadmap, laying out the steps, timeline, and budget to reach the common goal. Catapult companies identify and formalize the creation and sustaining of IP-consciousness as a strategic objective for the IP department, and actively monitor its progress.”
Vink says the reluctance of IP owners to divulge much about their IP is a huge mistake. He believes “the company’s IP position can be strengthened by communicating about it: explaining clearly what the company considers the extent of its rights and the boundaries of its exclusivity will increase respect of its IP instead of weakening its position.”
Defining and Conveying
IP communications is not as much about keeping score in a linear fashion, e.g. calculating the quantity of rights, as explaining how a business’ IP and strategy are used and profited from without divulging competitive intelligence. It is about defining and conveying meaning and impact in a given context. Facts are essential to IP performance, but so are perception and context. If stakeholders are ill-prepared to understand the meaning of IP rights and they are regarded as nuisances, the resulting image casts a shadow on research and performance, as well as shareholder value.
Vink is spot on in suggesting that IP consciousness should be a priority for all businesses and must be accompanied by an IP communications strategy that dispels misinformation and raises awareness. First-line stakeholders – employees, shareholders and customers – benefit most directly from such programs. But despite his branding experience, Vink does not go far enough. He misses the importance of outsiders who are stakeholders, too, who influence IP consciousness and perception. His view of audiences is mostly limited to the company, the first tier of those impacted by IP, although he suggests that suppliers could be included. IP stakeholders comprise several audiences directly and indirectly affected by a business’ IP and strategy, and keeping them informed serves business interests. (see stakeholder illustration). They have a huge impact in how IP rights are seen.
A more conducive IP environment is not built overnight. It requires the involvement of a range of stakeholders, including policymakers, educators, students, investors, potential partners or targets, and others. IP consciousness, really IP literacy, is a term that should be on the radar of business schools and STEM educators, if not included on the education curriculum; and it should be more central to investor and fund culture. IBM, Philips and other businesses have shown that disclosure about what IP achieves and how can be conveyed safely and profitably over time. Transparency is the foundation of IP consciousness and can be readily nurtured by informed partners as well as senior executives.