AACE's Significant Shift in Intellectual Property Policy
For those of us who have long since been concerned about the practice of certain "professional" bodies sequestering public knowledge, copyrighting it and then selling it back to us, there is some welcome news. On or about August 26, 2011, the following News Announcement appeared on AACE International's web site. It concerned a policy change to AACE's author/speaker Intellectual Property agreement. It read as follows:
"AACE Revises Speaker and Author Release Form
Effective immediately, AACE International will use a revised speaker and author release form for articles and technical papers submitted for the Cost Engineering journal and other publications as well as for technical papers for the Annual Meeting and other meetings and conferences sponsored by the Association.
The revised release more clearly defines the non-exclusive intellectual property rights assigned to AACE International by contributors. According to Executive Director Dennis Stork, the release is adapted from a model endorsed by the American Society of Association Executives from a prototype drafted by a leading Washington, DC law firm, Venable and Associates, for not for profit organizations."
Commenting on this significant change, AACE Executive Director, Dennis Stork, observed:
"The revised release states that contributors grant AACE International a non-exclusive, perpetual, irrevocable, royalty-free license to use the material submitted but also clarifies that ownership and title to all intellectual property rights not expressly licensed by the contributor to the Association remain with the contributor. [However,] as with the previous releases, the document indemnifies AACE International from potential liability should a contributor submit material that he or she does not have the rights to contribute."
Stork also commented that the new release does not significantly alter the intent or scope of the previous agreements. But it does provide more explicit language regarding the rights retained by the contributor and reduces the ambiguity regarding the respective rights and responsibilities of the contributor and the Association. He expects AACE International to adopt similar language in the near future regarding intellectual property licenses covering contributions to collaborative work products such as Recommended Practices.
To review the revised AACE International's Publication and Speaker Agreement,
click here: www.aacei.org/am/guidelines/PublicationAgreement.doc.
My good friend Dr. Paul Giammalvo in Jakarta first alerted me to this news by Email. He said:
FINALLY one professional organization has seen the light and has changed their Intellectual Property (IP) policy! Any chance you can make an announcement on your website, please? Maybe something in Max's Musings along these lines:
"On August Friday, 26, 2011, the US based Association for the Advancement of Cost Engineering International (AACEI), announced a major shift away from the IP policy of most US based, global professional organizations. They declared that effective immediately, contributors to their programs would no longer have to sign over their intellectual property, including the rights to any derivative works, to the organization. Instead, AACEI only require an extensive license to use the author/contributors IP while leaving ownership with the contributor."
You will be interested to learn that this policy is consistent with the intent
of Creative Commons licensing http://creativecommons.org/licenses/by/3.0/
and represents a major departure from the policy of most other US based professional
organizations. In making this change, it is anticipated that AACE will attract
the work of both academics and practitioners doing cutting edge research and innovative
implementations. It has been designed especially to appeal to the Generation X
and Generation Y practitioners, who are fast becoming today's leaders.
Compare this new position with the IP policies of YOUR current professional organization and see with which organization you would now prefer share your knowledge and experience."
I immediately downloaded the PublicationAgreement.doc file, examined it closely and responded with these comments:
Hello Paul, good to hear from you. Agreed, this is a major step in the right direction. However, I think that the Agreement is still unnecessarily onerous. Specifically, these paragraphs:
The Contributor agrees to indemnify and hold harmless the Association and its officers, directors, members, employees, and agents, from and against any and all claims, actions, losses, demands, costs, attorneys' fees, and all other expenses relating or incidental to, or arising directly or indirectly from, the inaccuracy or breach of any of the aforementioned warranties and representations.
The Contributor represents and warrants to the Association that the Contributor has the authority to bind the Contributor's employer (as defined below) to this license and release agreement.
As a sole practitioner, I would not be willing to "indemnify" anyone. I think the right approach should be one of "Buyer Beware". Still every step in the right direction is a good one.
Since then, I have been thinking about the issue some more. Certainly, AACE's shift in Intellectual Property policy is a good one and may have broader implications. However, there is still the offending "hold harmless" clause that, as presented, is classic, all-encompassing and heavy-handed legalese. Why would anyone take on such extra risk, no matter how small, if it were not necessary? Of course, for those just seeking self-promotion, they can weigh the benefits against the risk.
Indeed, there are many "sole practitioners", or practitioners acting alone, who find themselves doing innovative and thought provoking work but without a "Contributor's employer" to back or protect them. These are the people who are often the source of potential and real advances in professional knowledge. For them, wishing to make a purely altruistic contribution, the clause, all 57 words of it, is unreasonably discouraging.
Of course, professional associations must necessarily protect their interests against lawsuits, especially where a contributor presents the work of others, presumably as their own, and then is unwilling to warrant the work accordingly. The situation is particularly tricky in the case of "derivative works", which is where real progress is often made. But let's face it - associations are nothing without their members. In our view one of the principle roles of a "professional" association is to advance the competence and knowledge of their membership, especially through the experience and contributions of those in actual practice.
Surely, then, it is not too much to ask that, having accepted a member's article for publication, member associations make some effort to assist their member-authors in any related tribulation?
1. It is important to note that Paul Giammalvo, although a long time member and strong supporter of AACE, he is, nevertheless, NOT an official representative of AACE.
2. That is to say, a suitable caveat emptor clause published with the article and/or one that notes that statements made or opinions expressed do not necessarily reflect the views of the [organization] or its staff or members. In very small print of course!
3. "Altruistic Contribution" here means not expecting any material benefit in return.
4. Both the Gunning Fog Index and the Flesch-Kincaid readability test indicate that you would need 30 years or more of formal education to understand the contents of this sentence. According to maxwideman.com, the recommended maximum number of words per well-constructed sentence for project managers' readability on average is 35 (that means 40 at the most) - see www.maxwideman.com/issacons4/iac1453/sld007.htm.