TECHNOLOGY & INTELLECTUAL PROPERTY BRIEFLY
June 1999 Issue No. 8

KNOWLEDGE MANAGEMENT

This creates a purpose conundrum: the very raison d'etre for hierarchies is to provide proper information filtration systems. The difficulty is this: if your filtering is so good, how and on whom do you rely for accurate and relevant material actually reaching you in a sufficient form to allow you to make proper business decisions?

The further from the coal face you travel the more reliant on the information your business becomes and the more vulnerable. That raises two issues:

1. Intelligence networks; and


2. Knowledge management.

We will deal with intelligence networks in the next edition.

Organisational knowledge is processed information embedded in routines and processes which enable actions. At its core it is tied to the personal or human element and resides, for the most part, in people's heads because it is with individuals that information is identified, interpreted, and internalised. The representation of this knowledge, however, can be mechanical, digital and visual.

Organisations should identify, and then manage, organisational knowledge which can only be facilitated by the extent to which it has been captured by an organisation's systems, processes, products, rules and culture.

Organisational performance is the result of interaction of strategy, organisational context, and individual behaviour. This requires knowledge managers within an organisation to do three things:-

1. to choose the right approach for the right market;
2. to create processes to deliver goods and/or services to those markets; and
3. to motivate people to act in line with an organisation's objectives.

However you describe it, the essential critical performance factors in organisational design are:

Managers must raise to a conscious and actionable level their understanding of the fundamental behaviour, processes, and dynamics of the organisations they lead.

A learning organisation is an organisation skilled at creating, acquiring, and transferring knowledge, and at modifying its behaviour to reflect new knowledge and insights.

Developing IP Strategies is an integral part of this too.

IP STRATEGY

In years gone by if you were lucky enough to own something the public wanted to buy (Levi's, Coca-Cola, Microsoft) or bright enough to invent something worth patenting, you knew the value of IP – intellectual property. Until very recently if you said "intellectual property" people would respond with quizzical looks and general apprehension about your assessment of yourself – thinking that you were assessing the difficulty factor of what you did as an IP practitioner.

Now, though, businesses recognise that everyday they deal in, and produce and use "IP" – theirs and others', and that protecting and defending it can be a necessary component of business discipline. IP is both an asset and a discipline. It is a pie which is valuable and vulnerable: a pie whose recipe can be duplicated, which can be sliced – for sharing (licensing), giving away (assigning) and be eaten (being pirated or infringed). It is also a necessary part of the business discipline – no less significant than management of human and financial resources.

So, as a matter of discipline, take stock. Do an inventory of what IP you have and use and what you need to do to secure it. In other words, identify it and develop a strategy for each item. The sorts of questions you need to address are these:

• Does your name warrant protection?
• Can you afford to protect your IP? Can you afford not to? In which jurisdictions or countries should protection be sought?
• What protection should you seek? Is it a trade mark, something patentable, protected by copyright, a domain name?
• Do you need a patent attorney or lawyer, or can you go to a public office and do it yourself? Should you do it yourself?
• Is the protection you are seeking transborder? Global? Geographically bound?
• How will you finance protection?
• Does your strategy make allowance for global shifts in buying patterns?
• Does your strategy contemplate electronic commerce implications? If not, should it?
• How do you protect trade secrets and confidential information?
• Do your employment and consultancy contracts accurately reflect your strategy and project outcomes?

The answers to these questions will depend on the nature of your business and the item itself – whether it's a computer program, a domain name, or an anti-theft device for motor cars. Each strategy should be tailored depending on the item. Many other questions will arise during the process of planning and strategic thinking. The question then of IP management – like financial management – should be delegated to those who understand the marketplace and the legal and commercial environments in which the business operates or intends to expand into.

Oversights and neglect can be costly. Not planning for future needs can be disastrous. Refer your enquiries to Celine McInerney, Partner, on (61 8) 8210 1206 or via Email: cmcinerney@normans.com.au.

EMAIL - TRIPS AND HAZARDS

The exponential increase in email traffic has been accompanied, not surprisingly, by an increase in legal claims - defamation, harassment, and breach of confidentiality obligations to identify just a few sources of those claims.

Organisations using or providing access to email facilities must consider necessary policies and procedures, and risk manage what is, today, a reality: if you don't have an appropriate email policy which is properly enforced and seen to be enforced, you are unnecessarily exposing your organisation to risk.

Policies require careful drafting to reflect the current legal position and your organisational culture. Policies should not be drawn by IT or systems managers without careful consultation with HR personnel to ensure that internal policies are not at cross purposes: policies must be integrated with EEO and Diversity policies. Moreover, there's little point in having policies if they are not actively communicated to all authorised users - this may include employees, consultants, work experience placement personnel and volunteers.

There are issues in policy drafting in email which are unique to the technology itself and should be left to experts:

Other practical difficulties involve delicate issues of judgment. For example:

• what is an acceptable screen saver?
• how much time, if any, should organisations accept employees will use corporate facilities for private use? Should private use be allowed at all? In what respect is this medium different to the telephone? If organisations don't eavesdrop on telephone conversations how can or should email material be company property and be monitored for content?
• how much time is loafing?

Cyberloafing is the use of an organisation's facilities and misuse of work time. Cyberflaming is transmitting (sending or forwarding) offensive, harassing or insulting messages. Technological harassment is possible.

To illustrate the extent of damage, and bearing in mind it was in America, one US corporation paid $US2.2 million following a sexual harassment claim because of an email entitled "Why Beer is Better Than Women" - which was distributed throughout that organisation. The material was judged to create a hostile work environment and the employer held liable because it "allowed" the distribution. In other words - it did not prevent it by prohibition or by monitoring what was being passed around and issuing a positive direction to have the offensive material removed.

Of course what is objectionable, pornographic, or offensive to one, might not be to another. In this respect the drafting of policies requires great care to reflect cultural, social, moral and political "norms". Remember too that anything produced - or reproduced for that matter - on company-owned property, is company property. Employees cannot expect to quarantine "private" traffic. Indeed they should be told that any expectation of privacy is ill-founded.

For further information on this article, please contact Celine McInerney, Partner, on (61 8) 8210 1206 or via Email: cmcinerney@normans.com.au.

YOU CAN'T SUE ME

It is often overlooked, even by lawyers, that certain claims under the Trade Practices Act can be pursued not only against a corporation but also against an individual. Whilst it is commonly thought that all Trade Practices Act claims can only be pursued against a corporation, the fact is that individuals can be sued in their own right in certain circumstances.

For those wishing to pursue a claim under the Act against a corporation which has engaged in interstate trade, section 6(2) of the Act allows such a claim to be made against not only the corporation but also any individuals involved in any offending interstate trade conducted by the corporation. Similarly, for those wishing to pursue a claim against a corporation whose offending conduct involves the use of postal, telegraphic or telephone services or takes place in a radio or television broadcast, section 6(3) of the Act allows such a claim to be made against not only the corporation but also any individuals involved in, or a party to, such conduct on the part of the corporation.

So, if you are a director of a corporation or otherwise closely associated with a corporation, and your corporation is liable to be sued under the Act in respect of the specific types of claims referred to above, you may find you are named in the proceedings as a co-defendant with your company.

For further information on this article, please contact Brendan Murray, Partner, on (61 8) 8210 1204 or via Email: brendan.murray@normans.com.au.