There is no black and white here. Whether the Board’s slavish adherence to the bullying line taken by US legacy film and music interests is deliberate or arises out of ignorance is largely irrelevant. These are profoundly important public policy issues, and as citizens we rely on people in positions of impartial authority, whether because they are in government or because they present as impartial experts, to participate in policy development with courage, honesty and competence. I think we are owed an explanation. Here is a draft of an email I sent out today. I urge you to do the same - you can get the links on Michael’s post.

Update: The Conference Board has answered Michael with a response that is little more than a half-hearted attempt to deflect the issue. They sent me the same response. It was inane.

I have every confidence that somewhere on the hard drive of every PR agency flack working for the industry there is an action plan on forcing Canada to surrender its copyright laws (the annual deluge of industry association this-and-so reports is well under way of course, like the annual return of the swallows to Capistrano), and that right in the middle of that plan is this Conference Board report, likely with notations and talking points on dealing with the controversy it might create.

It’s enormously frustrating to have to continually deal with the intellectual bankruptcy of positions put forward by those under the spell of the money and power of legacy media industries. This is why Lessig stopped working on open culture and started working on corruption. Sooner or later the acolytes, consultants, lobbyists and hangers-on to US film and music legacy industries are going to have to deal with the rest of us. Thank goodness the web never forgets.

Updater: The Conference Board has recalled all 3 reports. Oh well - I was hoping we would get to have a debate. Well done, Michael.

Updaterest: Denouement. Mea culpa and the road ahead.

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Ms. Golden, Mr. Toope, Ms. Samarasekera and Mr. Wilkerson,

Please add my name to what is I hope a fast-growing list of Canadians who have informed you that they are profoundly disappointed that the Conference Board, with the aid of the Ontario Ministry of Research and Innovation, has chosen to align itself, presumably for political expediency, with legacy film and music interests in the United States, instead of performing the increasingly easy exercise, for the benefit of sensible policy development in Canada, of debunking their wild-eyed and fantastical claims of injury from Canadian intellectual property laws. Your report defies common sense, good policy and honest, impartial intellectual inquiry.

Dr. Michael Geist ably summarizes these issues: [link]

And frankly, shame on the Conference Board for holding such a one-sided public relations opportunity for US film and music interests: [link]

There are many very smart people doing hard work and making considerable personal sacrifices to ensure that Canadians can evaluate these issues in a balanced and sensible manner, far away from the moneyed influences trying so hard to skew our laws in favour of their financial interests.

The Conference Board, with the aid of the Ontario Ministry of Research and Innovation, has done enormous damage to his process, engaging in acts of seemingly breathtaking intellectual indifference and dishonesty, and frankly, you have much work ahead of you earning back the trust you have so cavalierly frittered away by these actions. I hope you begin this process by responding immediately to the questions Dr. Geist has directed to you.

Yours truly,

Rob Hyndman

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Here’s part 1 of my keynote conversation with Jessica Jackley of Kiva to get you started.

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And we did it all in less than 2 weeks. Using Twitter.

For a moment after I woke up the next day I wondered - did it even happen at all? It seemed to come together and pass *so* quickly. Well, yes it did happen:

Joey was there. Andrew was there. And many of our other friends were there too. There was a lot of dancing. *A lot*.

And while the frenzy has now subsided, and Jay Goldman, Lee Dale and the rest of the all-nighters have now gone home, for a while #HoHoTO seemed to be all that any of our friends were doing or talking about.

DJs Duarte Da Silva and Ryan Taylor presided. We played video messages from a whole bunch of tech and Toronto notables including David Miller, the Mayor of Toronto; Biz Stone (a founder of Twitter); Tara Hunt; Nora Young and the rest of CBC’s Spark team, and many others (much love to Michael O’Connor Clarke for making those videos happen). We also streamed twitters to screens in the Club - you can see an example here (and yes, the DJs did rickroll #HoHoTO).

How did we do?

@meghatron: Had a blast at #hohoto. Now in post-afterparty decompression, although it sounds like some of you are still trooping on

@RohanJayasekera: Happy to have been at #hohoto till the very end. OH “best party ever”. Well done, all organizers!

@Igniter: goodnight to all the #hohoto folks - great night - great thanks to all who contributed and created!

@remarkk: I absolutely LOVED #hohoto Best manifestation of the amazing tech/media community of Toronto that was given life by @davidcrow and Barcamp

@larrylarry: FBstatus: Had an awesome time at #hohoTO and am glad we raised so much money for Daily Bread Food Bank!

@robtyrie: #hohoto that was one great Toronto party…. best, can’t wait for the next @rhh…. we’re in

@charlesfinley: #hohoto was so much fun!

@emenel: Arriving home after #hohoto - amazing night

@Evendir: What a night, already can’t wait for the next #hohoto! My dancin’ feet may have recovered by then

@rlangdon: Oh, what a night! #hohoto

@OliverRanch: @photojunkie You did a great job at #hohoto have photo of me and my beautiful daughter, thank you so much

@astroboy: Tired. Friend did not answer the door as planned. Heading back to Barrie. #hohoTO was AWESOME!!!!

@MichelSavoie: Finally home from #hohoto! Going to bed. I have to be up in 4 hours. Eugh. Had an amazing time with @ilovecpstyle and @rlangdon

@scrawledinwax: Thanks much to the #hohoto team. Amazing! Even a wallflower like me met people and had a great time (and, erm, got a little toasted).

@larrylarry: Too much fun at #hohoTO i must now pass out :)

@boyreporter: had fun at #hohoto and now has a few more fashion blogs to add to the old RSS reader

@JBreckenreid: http://hohoto.ca/ was fun! Yeah! I am inspired

@nicopop: Attendees, sponsors, and especially planners (!), of #hohoto should sleep well tonight. Yay!

@fuzzz: Can you imagine the trouble we could get in if #HOHOTO was on a Friday or Saturday night?

@paul_henman: is heading home after#hohoto - lots of fun!

@davefleet: Fantastic night at #hohoto last night. Congratulations to all the organizers - you pulled-off an amazing feat

@traderzed: Good morning. Sort of. #hohoto was pretty fn awesome. Was dancing until 1am with @ksavo <3

@cherylmckinnon: OH My God! Why does this morning of all mornings need to be the monthly office fire alarm test. Ow my head #hohoto

@bbuset: What a beautiful morning - but could someone please turn down the brightness #hohoto-aftermath

@josephdee: #hohohungover :) #hohoto

@lorikong: @photojunkie Thanks again for the wonderful memories from #hohoto p#hohohotobooth! You’re truly an amazing photographer!

@krisreyes: #hohoto great time at the Mod Club, so proud that a small group of people organized such a cool event, for a good cause so quickly!

@irisng: #hohoto 2009 should be on a Friday or Saturday so we can all recover the next day instead of being walking zombies at work

@dpjanes: Breaking news: #hohoto causes 1 million dollars in hangover related damage to the Canadian economy.

@astroboy: I am thinking that today has turned into a day off for me. I’ve yet to do *ANY* actual work thus far. Still enjoying the post #hohoTO glow!!

@dwf: Thanks to #hohoto, today is probably going to be one of the least productive (Tues)days in Toronto tech industry history

and my personal favourite, from co-organizer Michael O’Connor Clarke (from whom a remarkable number of our accomplishments came):

@michaelocc: Think I’m still in mild shock. #hohoto

Me too.

Ryan has an amazing wrap-up video on the party. And Michael has a great wrap-up post.

There will be lots of photos about #HoHoTO posted over the next few days. Many of them will incriminate people you know. A lot of them will be here and here.

Lots of the pictures were taken by one of the team - Rannie Turingan set up the p#hohoto booth and took pay-what-you-can photos of our guests - and pay what they could, they did. Here are his shots (this one’s near the end of his pics).

Here’s one of my favourite pictures - taken by our friend Heather Williams - that’s Calum McGuigan of the Daily Bread Food Bank accepting the cheque.

Our guests came with money and food and left with great memories and hopefully a lot of pride over what they helped accomplish. People gave very generously - many made cash donations to the Daily Bread Food Bank while they were buying their tickets.

And we had *fantastic* sponsors - really decent folks who put their hands up right away - you can see who they are at the site.

And finally, here are the people who put #HoHoTo together:

Leila Boujnane - CEO, Idée Inc.
Alexa Clark - Managing Partner, Plethora Press
Ryan Coleman - Chief Community Evangelist, VizThink
Duarte Da Silva - Senior Manager, Communitylend.com
April Dunford - Director, Incubation Marketing, Nortel
Peter Flaschner - Founder, The Blog Studio
Sheri Moore - Partner, Creative Director, MCC Planners Inc.
Michael O’Connor Clarke - Vice President, Thornley Fallis Communications Inc.
Michael Penney - El Presidente, Afterlight Films
Michele Perras - Manager, Mobile Experience Innovation Centre
Corey Reid - Chief Cat Herder, FreshBooks
Ryan Taylor - Goldsmith, Adventurer, The Fair Trade Jewellery Co.
Rannie Turingan - Photographer, photojunkie.ca
Elena Yunusov - Founder, communicable.ca

I’ve written already about the wonderful chemistry we had as a team and how important being generous with each other was to this success.

But what I didn’t say was how genuinely decent everyone on that list is, and how proud I feel to have been part of this team.

See you next year!

Update: And when it was all over, they called in the Army.

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A great example of this is a group of people I’ve been working with lately. This group has, in a matter of days, put together a holiday party we’re calling #HoHoTo, to be held on Monday December 15th at The Mod Club here in Toronto (sorry, it’s sold out!!).

That’s right: sold out - in a matter of days. And The Mod Club’s capacity is over 600 people. How did this happen?

Well, there are a lot of answers to that question, but I think the best one is that it happened because of creativity. First, and most important, is the community that’s involved in this party - as we say on the site, “It’s for geeks, phreaks, webheads, twitterfiends, techies, media, marketing, and PR types and all their friends.” So, we were appealing to a group of people who are exceptionally open-minded and supportive of new ideas. They recognize a creative effort, and respond to it with understanding and enthusiasm. But also very important was the creativity of the organizing group itself (you can see a list of these wonderful people here). At every step of the way this group said “yes” to new ideas. There was no ego on display, no position-taking, no territoriality and no negativity. The team treated the exercise as a giant whiteboard - it filled the board with ideas and then arranged them into what we now have. I’m convinced that this attitude was core to our ability to take a pretty complex challenge and make it happen efficiently - and have a lot of fun doing it.

I’m more convinced than ever that knowing how to say “Yes”, and treating others with the generosity of spirit that this requires, is vital to meeting challenges well - in your business, and in life.

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I really can’t say it any better myself - take it away, Leila:

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I think many people would be surprised to hear that there are important steps you need to take for your new business before - even well before - you start it. But it’s true. The single most common request I’ve had over the past year from startups is to help them deal with intellectual property ownership problems created because of pre-startup work relationships. Indeed, in the last year I’ve seen one startup abandoned because of this issue and one exit scrapped. And many other problems have been worked through, with varying degrees of success and difficulty. All of this is a shame because these are generally easy - at least relatively - problems to address if you get at them early.

What’s the issue?

Generally, your employer expects that work you create on the job belongs to them. After all, you’re getting paid for it - this is only fair. Where your work product is protectable by copyright, the Canadian Copyright Act echoes this principle in Section 13(3), which says:

Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

I’ll make two points about this. First, putting aside cases where the work is an article or other contribution to a newspaper, magazine or similar periodical, the copyright in work “made in the course of employment” belongs to the boss. Second, because this is triggered by employment, it applies only to employees - this means that in Canada the copyright in work created by a person who is not an employee - we generally call these people ‘independent contractors’ - is owned, in the absence of any agreement, by the independent contractor.

What the Copyright Act says is only the beginning, though. Many employers - probably almost all in the tech sector - are not content to leave this issue to the Copyright Act. They prefer written agreements with their team members, generally because (i) there are intellectual property rights created by their employees (such as inventions, trade secrets and others) that are not addressed by the Copyright Act, (ii) they also work with people who aren’t employees, and are therefore not covered by the Copyright Act, and (iii) there are other aspects to the business relationship, like confidentiality, payment, non-solicitation, and many others, that should also be addressed in a written agreement.

As a result, one of the first things one gets from a potential new boss is their form of employment agreement or consulting agreement, and sometimes also a separate IP ownership, confidentiality and non-solicitation agreement. Sometimes the provisions of these agreements that deal with IP ownership are very similar to the words used in Section 13(5) of the Copyright Act - they state that the company owns work created “in the course of employment”. But usually they go further than this, and claim for the company not only work that is created in the course of employment, but other work as well.

Here’s an example. One pro-company formulation of this concept that I see quite often says that anything created by the worker during the calendar period they were working for the company (whether during business hours or not - whether in the office or not - whether using company equipment or information or not - even whether working on a project requested by the company or not) is owned by the company. While this is an extreme example, I see troublesome language in these contracts all the time. And I’ve seen many problems in these contracts caused by drafting errors - even very serious ones (these problems are not, I’m sad to say, rare, and can often make it very difficult to sensibly interpret a contract). I’m not saying, of course, that there aren’t cases where an approach that might at first blush seem extreme isn’t appropriate - but those cases are pretty rare, at least on the ‘net.

Why is this an issue for tech startups? Well, code, visual design and written work is often the subject of copyright. And all of these forms of work - as well as others that are potentially copyrightable - are often developed by and for tech startups, especially those active on the Web. But if the individual creating that work was working for someone else when the work was created, the chances are pretty good that the Copyright Act or a written agreement between that individual and that someone else raises questions about who actually owns that copyright. And if you don’t settle those questions early - preferably before the work is created - you could have problems - potentially very serious problems - later on.

How? Here’s an example that mashes together a few cases I’ve worked on recently: A client approached me wanting to sell his business. The main asset was an app. The key team members had written the code in the evenings and on weekends while they were employees of another company. The work was outside of their employment with that company, but to be sure about their position, they approached their supervisor to tell him what they were doing on their own time, and the supervisor verbally acknowledged that that side project was not the property of the company. Fast forward, and the team has left their former employer and is now in their own company, working on the app full-time, and is approached by a potential buyer. The buyer does some basic due diligence and learns that the core of the app was built while the key team members were working for the former employer. The team produces their old employment agreements, and discover that they contain copyright ownership language that seems to be very much in favour of the employer. I say “seems to be” because what’s more, the agreements are not well-drafted - people reviewing the documents can’t say for certain who owns the copyright created during the team’s employment, or since. Worse yet, the buyer is a competitor of the former employer and suspects that when the employer learns about the deal it might want to interfere just to slow down the competition. Cue litigators. Cue sick feeling in your stomach.

How Do You Deal With This?

There is only one sure way. Before you sign an agreement giving someone else rights to what you create, review it carefully. If you’re not sure about your position, have it reviewed by a lawyer. If you still have concerns about your ownership of Project X, clear them up with your boss in writing. And if Project X isn’t yet on the horizon, raise it as soon as it is - ideally, before you start working on it, but certainly before you start creating meaningful work product.

For a variety of reasons, people are often reluctant to raise these issues with their boss. First, they don’t want the boss to know they’re living another life or planning a departure - it’s important, for promotions, bonuses and the like, to be seen as loyal and committed. Second, they don’t want to be seen as a complainer - someone who “can’t see the big picture” and gets bogged down in “unimportant detail”. And of course, sometimes Project X will compete with the employer - the worker has figured out an approach that they think is better - and breaking that news to the boss is trouble for a variety of reasons.

I think some of these concerns are often misplaced. Many people understand now that no one is just one thing in the world of work. And the best employees often have a lot more than just one thing going on at any one time. Smart employers seek out creative people, and are not surprised when their creativity takes them in new directions. And smart employers know that someone who is particular about detail and principled about setting correct expectations before they start work will behave that way on the job too.

But only you can decide what the right approach is in your situation. Just be aware that keeping your head down now could create serious problems later on. And keep in mind also that written agreements with your boss sometimes also contain language requiring you to keep your boss informed of even your outside projects.

Last, you should keep in mind that every member of the team you might be putting together is in the same position - you need to vet all of them to make sure no one is coming aboard with a problem.

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