Working as a consultant I spend my life sharing documents with clients, and of course being sent documents as well. I have been using Basecamp in its original version for many years now as a repository for shared documents and my clients value the simplicity of the setup and the way in which the sections are presented. It may not look elegant, but it works. Eventually the project comes to an end. I will archive the project documents but never delete them as clients have the pleasing habit of coming back after three or four years. Of course, once archived the client cannot access the project site but there is nothing in my standard terms of business about the level of access they have to documents.
The entire purpose of collaboration applications is to be a resting place for documents that are of joint value to everyone in the team, be they within the organisation or just retained for the project. However, I suspect that few organisations have really worked through the Intellectual Property Rights of collaboratively posted documents (and I’m using “document” in a generic sense) especially when the organisation is not hosting the collection of files itself.
This is not an academic consideration. I am very grateful to Dion Lindsay (Real Knowledge Management) for alerting me to a court case that has (at least in my view as a non-lawyer) significant implications for hosted jointly shared data.
The case in question was taken to the Technology and Construction Court (TCC) and has been summarised by Gowling WLG here.
Building Information Modelling and shared data
Trant Engineering (Trant) was engaged by the UK Ministry of Defence as contractor for the Mid Atlantic Power Project. Mott MacDonald was appointed to provide design services and was also the Building Information Modelling (BIM) coordinator, controlling access to the common data environment (CDE). BIM files, which are used by the construction industry, are often of such a size that some form of external hosting may be the optimum solution. That is, until a contractual issue arises that might interfere with access. In this case, a fee dispute arose, and Mott MacDonald suspended its services and blocked Trant’s access codes to the CDE, resulting in Trant being unable to access the design materials.
According to Gowling WLG, The Technology and Construction Court concluded:
…that it had a high degree of assurance that Trant was entitled to have access to the design data which had, in fact, already been placed in shared folders. It was particularly relevant that Trant had previously had access to the CDE before Mott MacDonald had suspended performance of its services. The TCC therefore ordered Mott MacDonald to restore access to the relevant design materials, subject to Trant making a payment into court.
A legal precedent?
Although this case looks to be specific to BIM in English law, precedent is of the greatest importance in a court case. This case could set a potential precedent for future litigation to shared information depending on the view of the judge if it is indeed a valid precedent. Any organisation in a similar position would do well to bring this to the attention of its legal team. The issues are similar to those with cloud services where the implications for the integrity, sharing and deletion of files may not always be in line with the assumptions of the business. The cloud deal may make sense on a cost-management basis, but care needs to be taken that the legal implications are fully appreciated across the organisation.
Intellectual property, trust and knowledge sharing
By coincidence the issues of joint and several IPR on project files is the subject of a paper entitled “The dynamics of intellectual property rights for trust, knowledge sharing and innovation in project teams” by Professors Johan Olaisen and Oivind Revang. It was published in the International Journal of Information Management in December 2017. Professor Olaisen’s research interests are very much in the area of shared information in project situations. The abstract to the paper states:
How can intellectual property rights (IPRs) influence trust, attitudes, commitment, knowledge sharing, and innovation in inter-organisational project teams? The four strategically selected team cases include eight global knowledge-intensive industrial oil service companies in Norway. The methodology included 24 in-depth interviews done in 2016. The study finds that formal intellectual property rights are key to building up and keeping trust in the team and also for building up the right attitudes within the team. The IPRs increased the innovativeness in the team and incremental innovations. The IPRs fostered a unique knowledge sharing in these four teams enabling them to work towards innovative solutions and delivering on time. Formal IPRs foster informal trust and expertise sharing and by that also the inter- organisational cooperation. The confidence and knowledge sharing strengthen the possibility for future collaboration and innovations both on an individual level and on a corporate level. The theoretical implication of our findings is that IPRs increase the trust, commitment, and attitudes within the team providing knowledge sharing and innovativeness for improved solutions and results. IPRs are positive for collaboration, and they are complementary governance mechanisms. The practical implication is that IPRs must be defined and accepted before the corporations start up the interorganisational teamwork. The contract typology should in the start-up be sensitising giving directions and security and, in the end, definitive.