The Article of the Month

by Robert Dilts.

Intellectual Property and NLP

There is currently a great deal of ignorance and confusion about intellectual property in the NLP field. This ignorance has created a high degree of paranoia on one hand, and rampant disregard for the rights of others on the other hand. The purpose of this paper is to provide an overview of some of the basic intellectual property issues relevant to NLP and to propose some ways the issue of intellectual property may be acknowledged and addressed within the field of NLP.

Certification Versus Authorization

One general problem area relating to intellectual property is that of certification. Webster's Dictionary defines a "certificate" as, "a document issued by a school, a state agency, or a professional organization certifying that one has satisfactorily completed a course of studies, has passed a qualifying examination, or has attained professional standing in a given field and may officially practice or hold a position in that field."

NLP organizations offer a variety of certifications which relate to different aspects of this definition. This in itself can create some confusion about the implications of a particular certification. A certificate of completion merely states that "one has satisfactorily completed a course of studies." Any organization or institute can offer such certification. A certificate issued as the result of an assessment or qualifying examination is a statement of skill. It is a symbol of what one has learned and is able to do behaviorally. Again, so long as there are clear assessment procedures, practically any organization or institution can offer such a certificate. A professional certification that asserts someone "has attained professional standing in a given field and may officially practice or hold a position in that field" is a little more tricky in that the certifying organization or school needs to have the appropriate professional position or reputation to grant a person rights to "officially practice" or "hold a position" in a field.

Beyond that, it is important to distinguish between "certification" and "authorization." Certification has to do with a person's, skill and their ability to practice in a field. Authorization has to do with the permission to use intellectual property. Authorization involves intellectual property rights and ownership. With respect to training, for example, certification relates to a person's skill as a trainer. Authorization relates to the rights to use material related to the content of a training.

NLP models, techniques and skills may be applied to the 'process' of training or presenting, or offered as the 'product' of a training or presentation. Mastering the applications of NLP to the process of training or presenting is what trainer "certification" is about. Selling NLP models and techniques as the product of a particular training or presentation relates to "authorization." Attesting to the fact that someone has demonstrated proficiency and understanding as a trainer is different than authorizing that person to copy and sell intellectual property.

A "certified" NLP Trainer is not automatically "authorized" to use particular intellectual property (i.e., copyrighted material or trademarks) without the authorization of the owner of that material. One can only give another person permission to use intellectual properties that one has rights to.

To make an obvious example, the fact that someone has been certified as an NLP Trainer by a particular institute does not authorize that person to make copies of books, manuals, tapes and other materials that are not the property of that institute. The certification is simply an assertion by that institute that the individual has demonstrated training skills according to whatever standards and assessment procedures have been established by that institute.

No NLP trainer, association, society or institute automatically has the rights to materials developed by a particular individual in the field, unless some type of specific licensing arrangement has been made. To understand this point better, it is important to look more closely at the issue of intellectual property rights.

Copyrights

The two areas of intellectual property that have most relevance to NLP are copyrights and trademarks. In the United States, copyright law is derived from the US Constitution. The same section of the Constitution that provides for patents gives Congress the power to "promote the progress of science and the useful arts by securing to authors, for limited times, the exclusive right to their writings". Copyright law was basically established to protect writings, but has been expanded to include other expressions of ideas. A book, for instance, is copyrightable. So are photographs, drawings, architects' drawings, records and music. You can also secure copyrights for works of art, paintings and statuary, maps and computer programs. You can even copyright reproductions of works of art. They are all expressions of ideas. You cannot copyright an idea, and you cannot patent an idea. You can patent a specific article of manufacture based on an idea, and you can get a copyright on a specific rendition of an idea.

This is a fundamental distinction that relates to what have become known as "NeuroLogical Levels" in NLP. Copyrights, patents and other intellectual property rights relate primarily to 'environmental level' products, and extend to specific behaviors (such as "performance rights") in some cases. "Property" relates to something concrete and tangible. Processes at the level of capabilities, beliefs, values and identity cannot be intellectual "property."

Intellectual property laws relate to dynamics which function at a particular level, and the rules which apply to one level do not apply on others. As President Thomas Jefferson pointed out, "If two people get together and exchange a dollar, they each walk away with a dollar. If two people get together and exchange an idea, on the other hand, they both walk away with two ideas." 'Dollars' are at the level of concrete, environment. 'Ideas' are at the level of capabilities and beliefs.

The distinction between ideas and their expression is important in order to understand how copyrights work. For example, if someone were to write a history of the City of San Francisco, that person could copyright his or her book on the history of San Francisco. That would not prevent someone else from getting the same idea and writing a history of San Francisco. The facts that are involved would have to be the same. If someone has written a history of San Francisco and copyrighted it, then he or she is protected from someone else coming in and taking that particular work, copying, publishing and selling it as their own. But it would not stop someone else from writing his or her own history of San Francisco.

One big question, of course, is how close can someone be to a book or a computer program without infringing on it? Could someone change a few lines or have exactly the same structure and just paraphrase the sentences? Copyright infringement of written works can sometimes be difficult to demonstrate. It involves looking at specific paragraphs and sentences. You have to look at all the elements that make up the work and see how much of it is similar.

In order to get a copyright you have to create something new and original. You may well be able to get a copyright on your arrangement of somebody else's song, for instance -- to the extent that you added something else to it. That doesn't mean that you have the right to use it. If you make a unique variation of someone else's work, you must still respect the other person's rights in his or her original work. On the other hand, the original composer does not automatically have the right to the unique arrangement you have created either.

The issue of intellectual property rights with respect to NLP can be just as complicated. In some ways, in fact, NLP is probably most similar to music relation to intellectual property rights. With music, for instance, you can copyright the underlying musical composition. You can copyright the specific printed sheet music that is sold to the public. You can copyright a record that is made of someone singing that particular song. So there are three different copyrights you can get on that one underlying composition. All of them based on specific renditions of the musical idea.

Most of the issues with respect to intellectual property and NLP arise in reference to seminars. There are a number of rights related to giving seminars. There are "copyrights, there are the so-called "performance rights," and there are "unfair competition rights."

The current US copyright law gives you a copyright in your work as soon as you reduce it to some concrete form. As soon as you've put the ideas down on paper, you immediately have rights in that work, whether you have placed a copyright notice on it or not. If a few copies are distributed -- let's say you send a few copies of an article out to publishers to see if they're interested in publishing it -- you have not lost your right to copyright it. In fact, the copyright law provides for registration for unpublished works. You could take the copy of your work and go down and make a photocopy of it and send it to the Copyright Office and you could register it, in unpublished form. And you would have a copyright in the work.

The copyright notice is a "C" in a circle - - the name of the person claiming the copyright, and the year in which it is published. A typical example of a copyright notice would look something like:

Copyright 1997 by Meta Muddle Associates. All rights reserved. No part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, without permission in writing from the author or publisher.

The typical length of a copyright is based on the author's life plus fifty years. When you file the application for registration, you include your birth date which becomes an essential feature of the copyright coverage. (You can't sue for infringement of copyright until you have registered the copyright with the Copyright Office.)

If it's a "work for hire," then the copyright is for seventy-five years from the date of publication. "Work for hire" is where the author is hired to produce the work. Say Walt Disney Studios hires someone to write a story for a movie, and that work is produced as a result of their being hired. That would be a work for hire, and the life would be seventy-five years.

In addition to copyrights in manuals and handouts, if the seminar is recorded, the presenter can copyright the tapes, so long as what he or she is presenting is original. The presenter could prevent someone from taking the tape and making an essentially identical performance of the seminar. Of course, the tape could be used as the basis for a book, and a person could copyright the book. He or she would also have rights in any translations made from tapes or books.

Again, remember the distinction between ideas and their expression. When someone has been to an NLP training, that person has the right to use the ideas that he or she has learned with his or her clients. The person does not have the right duplicate and distribute copyrighted material used or received during the training unless he or she has obtained permission or authorization from the author or publisher of that material.

Fair Use

Under the current US copyright laws, there is a fair use doctrine. It's always been possible to quote from somebody's copyrighted work as long as you show that it's their copyright and that you contact the copyright owner and tell them you're quoting from their book. You obviously can't take a best seller and then say, "As they said in Gone With The Wind..." and then repeat the entire book. But you can pick certain pieces out of a book. It's considered a "fair use" as long as you haven't taken the entire work and used it for your own purposes. If you are using it as an illustration of some sort, as part of a much larger work, it is considered a fair use.

Anybody can list anybody's books in a bibliography and say "this paper is based in part on ...." The person who has published the book under that name has no objection he can make to the fact that you have used his book in preparing your paper. Mentioning it is like mentioning the name of a public figure. Newspapers do it all the time. If you do something noteworthy, they can tell: it's not a violation of your right of privacy to report that fact that you climbed the side of the Bank of America building to the top and were arrested by the police. Whenever you've done anything that's noteworthy, such as publishing a book, that item is a fact that can be used. So a bibliography is no problem so far as listing the names.

You would get into a problem if you had an appendix and in the appendix you essentially reprinted somebody's doctor's thesis or a chapter out of somebody's book without their permission. Then you're getting into copyright infringement.

Plagiarism, of course, is copyright infringement. Plagiarism involves presenting someone else's intellectual property as your own. Sometimes this is done unintentionally, when a person fails to cite the sources of material that he or she is using.

In general, If you're going to make a quotation of content from somebody's work, it is good practice to get their approval ahead of time, such as a signed letter of release. When asking for permission to use copyrighted material, you should furnish the following information:

  1. The pages you want to use, titles, and/or page numbers in a specific publication.
  2. The group or publication that will be receiving the information.
  3. Where and when you will be using the materials.
  4. The number of copies you want to make.

Trademarks

Copyrights are not the same as trademarks, although people sometimes confuse the two. A "Trademark" essentially relates to the name or logo of a particular trade. You cannot copyright a name, short slogan or a trademark. Copyrights are reserved for expression of ideas, such as books, photographs, records, drawings, etc. But a name that distinguishes one company from another is not copyrightable. Instead, you register trademark rights in the name relating to a trade. To claim a trademark, you would place the letters "TM" after the name. (You cannot use the "R" in a circle until you have actually registered the name with the Patent Office.)

In the U.S. you register a name as a trademark either with the state or federally. Every state in the union will register trademarks. They will register the name of your company or the name you sell a product under. In the state of California, you could claim exclusive rights in a name and you could register it with the Secretary of State. If you want to register the name federally, then you have to go to the Patent Office in Washington and register it. You cannot register a name federally until you have actually engaged in interstate commerce.

There is currently a great deal of confusion relating to the difference between NLP as 'field' and NLP as a 'trade'. A 'trade'-mark only extends to a trade. The problem is, NLP is both a field and has become a trade, which has created a lot of misunderstanding about the nature of NLP trainings. This is probably one of the most important issues for the NLP community to clearly sort out.

Teaching people NLP for educational purposes is different than involving them in a vocation or trade. Unless the participants of an organization's trainings sign a statement saying, "The undersigned clearly understands that the education being provided is solely for avocational / recreational purposes and not to provide training for employment. Such education is being pursued for personal entertainment, recreation, individual edification or as a hobby," that training could be considered vocational, or part of a "trade." As such it would come under various governmental laws and regulations that are different than for education alone.

The generic use of the letters "NLP" may indeed indicate the name of a "field," but the use of "NLP" to identify a professional certification or licensing program may relate to a trade.

Some Ideas to Address Intellectual Property Rights in NLP

The following are some suggestions about possible ways the field of NLP might address some of the issues raised in this paper. One possible way to deal fairly with intellectual property in NLP could be to set up a Copyrighted Materials Distribution Center, where each author or publisher can set their own terms for how to sell or distribute their materials, much like the music business does with songs.

Credit History

One difficulty in giving proper credit arises when an idea, or expression of an idea, is the result of a group effort. (As Isaac Newton said when asked about his great discoveries in physics, "I was merely standing on the shoulders of giants.") Unlike other creative fields, like the music and film industries, NLP has not yet established conventions for crediting the people involved in creative group efforts. Films acknowledge not only the actors, but the directors, producers, screenwriters, editors, special effects creators, etc., who are all key parts of making a successful movie. NLP needs to establish a clear set of roles relating to the types of contributions which might be made with respect to NLP developments. There is a kind of "credit karma" that comes from acknowledging the contributions of others. When you give credit, you get back credibility.

There are a number of different elements in the creation and development of something, whether it be an object, theory, technique or idea. First of all, most products of creation have both a conceptual and operational side. The conceptual elements are the ideas that serve as the theoretical foundation of the product. The operational elements have to do with the implementation of ideas.

In terms of the conceptual and operational development, there are a number of basic roles. There is 1) the primary creator role which typically serves as the 'focal point' for the development. Then there are various support roles including 2) individual who have the conceptual or operational background, 3) ongoing contributors who help to test and refine concepts or operations, and 4) those who make further adaptations and refinements of the material.

For example, while Robert Dilts served as the 'focal point' for the development of a number of techniques and formats such as Reimprinting, Failure into Feedback, Belief Integration and Logical Level Alignment, there were many other people to be acknowledged for their support roles.

The technique of Reimprinting, for instance had both a conceptual and an operational history. Conceptually, Reimprinting is drawn from the background concept of "Imprinting" of Konrad Lorenz, which was extended to "re-imprinting" by Timothy Leary. It is also conceptually supported by Sigmund Freud's ideas from his Studies in Hysteria, and the family systems work of Virginia Satir. Operationally, however, Reimprinting is drawn primarily from the Change Personal History technique of NLP developed by Richard Bandler and John Grinder.

Contributing support is different than background support in that it comes during the formation and "beta testing" of a process. For instance, the physicalization of the time-line, and spatial sorting of "significant others," as part of Reimprinting technique came from a series of discussions with Judith DeLozier and John Grinder and a resulting set of seminars Dilts did with Grinder, called Syntax. Other incidental conceptual and operational support came from Dilts' colleague Todd Epstein, as the technique became formalized.

Adaptations relate to conceptual and operational refinements or improvements on a process, model or technique once it has been established. The "Forgiveness Pattern" by Tim Hallbom and Suzi Smith, for example, represents a significant, creative variation on Reimprinting, allowing someone to work with significant others without the need for working with a time line.

The Failure into Feedback technique is primarily an extension of the work on accessing cues and cognitive strategies begun in the early days of NLP and described in the book Neuro-Linguistic Programming Vol. I. The innovative relational aspects of the process, however, were stimulated by the work of Max Wertheimer and his colleagues in the area of Gestalt Psychology.

The Belief Integration process draws operationally from a combination of the NLP techniques of the Visual Squash and Reframing. Conceptually, it has been heavily influenced by the work of Fritz Perls and Virginia Satir.

On a fundamental conceptual level, the notion of Logical Levels in belief change is drawn from Gregory Bateson's applications of logical levels in his studies of systems and schizophrenia. And much of the inspiration for the methods of applying these ideas was derived from the innovative work of Milton H. Erickson M.D.

These suggestions are only the beginning of an important dialogue that needs to be continued among the key innovators and developers in the NLP field. It is only when these issues have been sorted out that we will truly begin to have credibility as a field.

For further information on intellectual property rights and copyright issues, visit World Intellectual Property Organization an intergovernmental organization with headquarters in Geneva, Switzerland.


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