December 01, 2004
Blogging to become a legal obligation?
I just had the priviledge to attend a meeting with Alain Bensoussan, the famous parisian lawyer and IP guru, together with other French KM specialists. Chloe Torres of the Alain Bensoussan law firm called the meeting so that we could work together on a «KM Charter», which could be proposed to French organizations as a governance framework ruling the knowledge sharing behaviors of their employees.
This was a very interesting and passionate conversation. Alain Bensoussan took the viewpoint of a particularly touchy and control-oriented top manager –or maybe he was just being a little provocative to push the debate ;-)-. According to him, the starting point is that «knowledge belongs to the company». If I understood correctly, this means that a recruited employee should specifically state the different aspects of the experience he brings to the company within the knowledge domain he was hired for and then relinquish all rights to the knowledge developed thereafter in this domain, whether explicit or not (a.k.a. «background information» in joint ventures). If the employee happens to leave the company to work elsewhere, he can be exposed to legal action if he is found to be using any form of knowledge acquired in the previous company, whether explicit or tacit.
Whew ! Now that’s what I call a hard line ! And I was really frightened to learn that French law is apparently leaning toward this industrial age conception of corporate knowledge.
Nevertheless, the conversation was really interesting. I made two points that were important for me:
1- Indeed, all written (digital) information residing in the company’s archives belongs to the company. Hence, when an employee uses the company’s information management systems at work, all content he produces or contributes to belongs to the company, and can be claimed against the employee if it is found to be reused by him outside the company. However, it is also customary to say that knowledge is the only asset whose value grows by being shared. Thus, an employee should indeed be expected to share his knowledge within the company, and should be punished for hoarding information relevant to the company’s operations. Jack Welch was clear about this at GE, when he argued that employees were not paid to have good ideas, but to share them. So, I would argue that a former employee can indeed be sued for using company knowledge for his own benefit, but only if knowledge retention is demonstrated.
2- When a new employee is hired, he brings along two things with him: his working power and his former experience. The first commands a salary to compensate for the services he provides to the company. The second is more like an investment: the employee expects to see his personal knowledge grow so his market value increases on the job market. He cashes in on his investment with salary increases or when he is recruited by another company for a higher salary. Now if the expected return on this investment is reduced by the management in the form of non-disclosure, non-competing and non-whatever agreements, I would argue that it needs to be compensated in other ways. The best for me would be in the form of company shares, to encourage the employee’s loyalty to the company.
Reflecting on this meeting on my way home, I was wondering why so many managers still view «knowledge» as something that can exist outside of the person. Corporate «knowledge bases» are nothing more than a record of past history in written form, which will never more than the emerging part of the knowledge iceberg. More importantly, I believe that these same control-driven managers are making a tremendous error of judgment that could eventually kill their companies if they keep on working on how to keep the «company knowledge» in a safe place rather than growing it.
To grow knowledge, you must be prepared NOT to control it. Because people only truly share what they know with their trusted peers, it is a total waste of time for upper management to try and put it under control. As soon as a top manager enters a room where peers are gathered to try and solve a problem, the conversation stops. The former peers scatter like chicken, each one trying to attract the manager's attention and appear as the leader of the group. It is known for a fact that the most valuable corporate knowledge grows on the field of practice, together with partners and customers. Now whose knowledge is that? The company's? What company?
Knowledge sharing does not happen outside communities. Hoarding information can indeed destroy value and hinder the development of the company, but sharing too much information too. It's all a matter of identifying the relevant communities of trust. A typical employee belongs to several of those, some of which are accessible to his management (e.g. competitive intelligence), and some of which are not (e.g. Java programming). Control freaks will have to learn to get over it.
On a practical note, this has quite simple implications. Let's ask ourselves what happens when an employee leaves a company to develop his ideas in another one. Well, if it is proven that he withheld information from his former employer to do that, he should be sued. But if he had this great idea and shared it in the company, but nobody cared (happens all the time!), is there a good reason why he shouldn't be allowed to leave and maybe start a company with this idea?
In the end, it might well be that the best interest for both parties is to have every employee keep written logs –one per community- of everything they do. The employee can then use the blog records to prove that he did not withhold information from the company. If he cannot, well, too bad for him.
Christina points to an interesting post on Mopsos about the legal obligations of logging information and how our employers might own even our thoughts.
Mopsos has written an interesting piece on knowledge management (via blogging) in the corporate world, Blogging to become a legal obligation? In it he describes a conversation with a lawyer who suggested that all of an employee's knowledge belong...
In my last post I put down some thoughts about how blogs could be used as a form of tacit knowledge capture.... Catching up (who am I kidding? I'll never catch up) with my reading this evening I found Knowledge Jolt with Jack: Your blogging obligato...
Mopsos has written an interesting piece on knowledge management (via blogging) in the corporate world, Blogging to become a legal obligation? In it he describes a conversation with a lawyer who suggested that all of an employee's knowledge belongs to...
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