Lawyers have a reputation as a pretty humourless bunch. I hope that's more because clients pay us to spot and avoid problems, and not out of a fundamental lack of a sense of humour across the legal profession.
But a couple of rare work-related items crossed my desk this year that gave me a brief reason to stop and smile.
I'll spare the blushes of the lawyer who sent one particular contract to me. In trying to define his client's intellectual property to include ideas, he came up with the definition: "Ideas means forms (such as a thought) formed by the consciousness (including mind) by the process of ideation. Ideas give rise to actual concepts, or mind generalizations, which are the basis for any kind of knowledge whether science or philosophy."
Ok, maybe it's not exactly laugh-out-loud in the sense of the Two Ronnies' Four Candles sketch [But I always thought it was the 'Fork Handles' sketch - ed.], but I have to take my amusement where I can find it nowadays. And yes, ideation really is a word – go look it up.
This convoluted definition served to highlight a couple of key contracting points.
First, there's no copyright in ideas, merely in the expression of an idea. Software vendors and outsourced service providers might prefer otherwise but, unless patents are involved and as long as a customer doesn't copy the literal elements of a software program or process methodology, there's little that can be done to stop the re-use of the know-how or learning that a company's employees take on board. This works two ways, of course, and vendors may be able to take advantage of ideas or concepts that they learn about your business. Well-run technology estates typically deploy a range of techniques to filter out copyright-protected elements from more freely reusable know-how and methodologies.
Secondly and at a more practical level, in a contract as in life, sometimes it's better just to stop talking. If he hadn't tried to over-egg things by throwing the thesaurus at the definition of an idea, I might have missed the attempt to slip into the IPR definition the misconceived principle of idea-protection.
Meditate in My Direction
Everyone has their favourite film of the year, or book of the year. Do only lawyers have their favourite typo of the year? Mine came from an inadvertent email slip from a young lawyer at another firm asking whether it's preferable "to have a meditation clause" in a contract.
He was referring to mediation, of course, not meditation. But it did make me think that many ICT contracting relationships could be improved if meditation were included as part of the Governance process. I can think of plenty of situations where the parties have been too ready and willing to jump straight to formalised dispute resolution without first stopping to work out whether the desired outcome justifies the means. Quiet contemplation of a dispute's risks and costs (both financial and in terms of distracted management time) is always worthwhile. ICT dispute resolution should be treated as any other project in terms of continued calculation of the return on investment.
Maybe the English legal system is coming to the same conclusion. For the first time, earlier this year a court enforced a contract term obliging parties to enter into "friendly discussions" before embarking on arbitration. Previously, English law regarded any agreement to settle disputes amicably as too uncertain to enforce, creating practical difficulties of monitoring and enforcing compliance. Maybe time, and the recent change to allow the common "friendly discussions" clause to be enforceable, will prove my friend's advocacy of the benefits of meditation in contract disputes to be have been less a typo and more an accurate and far-sighted prediction.