Executives often refer to ideas and knowledge as their company’s IP, or intellectual property. Lawyers, however, view things rather differently, because the law makes a clear distinction between ideas and the way they are expressed (and this is a rare instance of international consistency in the legal world). This raises some interesting questions for companies that wish to source ideas and intellectual input from the wider public via the internet – the process often referred to as crowdsourcing.

It is what BP did when it invited the public to submit their ideas for dealing with the Deepwater Horizon oil spill in the Gulf of Mexico. And the UK’s coalition government is keen on crowdsourcing, too, inviting the electorate to make suggestions on cost-cutting opportunities. In law, ideas submitted in this way can’t be owned, because the law gives ideas limited protection. But what can be owned is the way these ideas are expressed, which is subject to copyright.

Take, for example, the term crowdsourcing: the person who came up with the idea doesn’t own it or the term itself, but if they write a paragraph about it, copyright applies to that text – much like how this article is protected.

The issue of ownership

As a result, where a crowdsourcing exercise attracts detailed, written responses, the company that conducts the exercise can use the ideas from those responses freely, but there are ownership issues in the words themselves.

If the intention is simply to harvest ideas, not text, then the crowdsourcing organisation need not have concerns about IP rights. However, they should perhaps be careful about how contributors view the situation. Participants may accuse the crowdsourcing organisation of hijacking their ideas, even if these were submitted voluntarily. There are no grounds for legal recourse in this situation, but people aren’t always logical and claims could still result in reputational damage.

For that reason, the best approach to crowdsourcing is to set out some basic principles from the outset, making it clear that all contributions may be freely used without attribution (or any other concession) to contributors. Smart companies will get participants to first agree to terms and conditions stating that the rights to their ideas and the expression of these ideas transfer on submission to the crowdsourcing organisation. This means you stop an individual from doing anything with the material once it’s submitted, like giving it to a competitor.

A second approach is that you don’t impose the same degree of monopoly over the submitted ideas and their expression. In other words, your organisation can use them, but so can others. In a new world where social mores have shifted, it’s about getting this balance right. There is more freedom about sharing ideas and information that could help your organisation, but at the same time you can’t be too greedy – if the courts of law don’t get you, the courts of public opinion will.

• Jonathan Smith is general counsel at Fujitsu UK & Ireland. A solicitor with more than 20 years’ experience, he has worked as an in-house lawyer since 1992 and is a fellow 
of the Society for Computers and Law.