The Delusion and/or Truth of Invention and Discovery or What is Intellectual Property
NOTE: I am not a lawyer, this is just my opinion. I do mention certain people who have developed specific systems and seminars but that doesn’t mean they will agree with my opinion or even like it and I am not presenting this as anything other than my opinion.
If you follow the progression of learning called Shu Ha Ri or simplified Mimic Question Create – then at some time you will be exploring your martial art and creating and developing it. You will use all that you have been taught and observed and read and your own judgment often joined by sharing with fellow travelers and you will create something you feel is new and exciting and often profound.
This article is all about that “new” stuff and where it fits and if it belongs solely to you.
Many many years ago, my long-time training buddy Rick Bottomley and I were working on improving our power generation and found using gravitational alignment and dropping our mass into a strike or movement greatly enhanced power.
We were feeling very clever at our discovery and then one night I threw on a VHS tape (yes it was that long ago) to show Rick B. this clip on Xing Yi Chuan.
It seems the inventor of Xing YI Chuan had stolen our idea of “sinking”. Mind you the creator of Xing Yi, General Yue Fei (disputed by some), lived during the Song Dynasty (960 – 1279 AD) so we weren’t sure how he managed that.
The human body only has so many ways to defend itself and only so many ways to move and I personally think they have all been discovered already at some time by someone.
This doesn’t negate that Rick B. and I had never been taught this in our years of studying martial arts and had figured it out ourselves but it does mean there were people out there who already knew about it and were doing it and teaching it.
Now had this Yue Fei fellow been a contemporary of ours we could have screamed “He stole our stuff.” He stole our intellectual property.
But the fact that he didn’t and the fact he hadn’t even lived in the same century meant we had no argument nor did we for anyone one in his style teaching stealing “our stuff.”
If he had trained under us – he just may have learned what we taught him, but does that mean by using what we gave him that he stole it? I’ll come back to this.
You see we all feel good about the things we discover and sometimes that feeling becomes very possessive and extends into the belief that no one else could discover the same thing now, before or in the future.
If we pause for a moment to consider the arrogance of saying no one could ever have thought of what we did, we can see that cannot be true. But what if they thought of it because of us? Again we’ll come back to this.
Most styles or systems that take a similar approach to self defence (i.e. CQC) tend to have great similarities. The Southern Chinese styles while not identical certainly can look a lot alike. The same is true of many styles from similar areas. Reality based systems or military based systems tend to look a lot alike even if the originators were years or distance apart.
I recall a person coming onto a martial arts forum presenting a style he had created and describing the body mechanics he used and the facts that NO OTHER ART anywhere at anytime had ever used these body mechanics. I thought it impressive that he had managed to look at all arts at all times in history but then I posted a clip of Bagua where they used and described the mechanics he had “discovered.” Now in farness to him I did believe he had discovered this approach himself or derived it from what he had been taught and kudos to him for doing so, but his blanket statement that it had never been done before by anyone at any time was incorrect. As you might imagine if you’ve ever been on a martial arts forum he did not take the information well and had Bagua not been so old it wouldn’t have shocked me if he claimed they stole his idea.
This doesn’t mean that a person cannot have something unique in their approach to something, a twist, that has not been done before or to that depth. They will believe it is unique, but even though they think it is unique and new and original, because it is to us, it doesn’t mean it is actually new.
People also get invested in what they study. We wish to feel unique and special so when someone points out that the intercept we’re using has been around for a hundred years or more then people can get very defensive.
Most of use studied somewhere under someone else. Most of us train and work with others. Most of us talk and discuss this thing we love with others. Most of us watch videos and read books and study this stuff intently. So, what then is ours? And just because we “created” something, has it never been done before just because we’ve never seen it?
I would never say that what I do is solely my creation and I have never learned or gotten anything from anyone. That would be complete bullshit or why did I put all those years in studying. I believe the greatest learning in martial arts comes from sharing and that synergy of one person taking an idea they heard and seeing a completely different relationship. This happened the other day when I was working on my Chen Taiji Practical Method with my long-time training partner and Taiji instructor Rick Bottomley. He pointed out a use of tendons and the elasticity of the body that I had not heard before or read anywhere (but I am sure it is out there somewhere). I listened and pointed out that explains how this over here works – something he had not thought of. Now both of us expanded our knowledge by that sharing. Two minds are better than one.
I believe that the journey of martial arts and self defence is one of discovery and often rediscovery. We should be finding things new to us and we should be developing them. But just because we discovered something we think is new does that then make it our intellectual property?
That is the question: How do we distinguish intellectual property?
According the Canadian Intellectual Property Office:
“According to the World Intellectual Property Organization, intellectual property (IP) is a creation of the mind. IP includes inventions, literary and artistic works, designs and symbols, and names and images used in business.”
“Intellectual assets are what we call “intangible” assets. They include inventions, new technologies, new brands, original software, novel designs, unique processes, and much more. These assets have value in the marketplace very much like tangible assets, or assets that you can hold in your hand.”
The key here is “new” or “original” or “unique” but in martial arts can anything be new? People have been bashing each other since the dawn of time so how can anything be classified as new and therefore be intellectual property.
I think it can be, well, sort of.
I really do not think you can discover a techniques or mechanics that has never been discovered ever in martial arts and self defence. However, you can put your spin on it. There can be a uniqueness to the work and investment of study that makes your presentation, your organization of the information, your method and approach to teaching the material, how you synthesise the information for yourself and others can be unique.
A math text may not contain one new mathematical concept but the presentation and approach to teaching and simply the writing can make it intellectual property, meaning you cannot simply reprint the book word for word without adding your own uniqueness to it. To do so would be a violation of intellectual property.
Over the last while I’ve been reading a lot of Moshe Feldenkrais’ work. I started with his Body Mind work but became a real fan after learning of his martial arts background. He was one of the first Judo black belts in Europe. He had been a Jujitsu practitioner but learned Judo after meeting Dr. Kano. Back in the 30’s he was teaching that people had a natural reaction to an attack. They flinch away and throw their hands up, so that is where he started teaching from. My buddy Rick B. talked about flinching for many years and I learned about incorporating the Fear Reaction (as he called it) from a Kung Fu practitioner years and years ago, and he had learned it form his teacher.
That natural reaction is something people have taught for years so how could it be intellectual property?
If someone teaches me how to incorporate that natural reaction in my self defence – is it their property or mine?
That depends. If I work at a Nike shoe factory, leave, take their designs with me and make them and sell them is that taking intellectual property? If I also call my shoes Nike is that going too far? Shoes have been around a long time now.
If I teach from that math text is that okay? If I reprint it under my name….?
The natural response of flinching is not new and has been taught over the years by a number of people. As said before Moshe Feldenkrais was teaching it back in the 1930’s. So, if I take a Tony Blauer’s SPEAR seminar and then use that flinch response in teaching is that wrong? If I call it the SPEAR system is that wrong? If I took his actual presentation material and began using that in my own seminars to earn money is that wrong?
A flinch in response to something flying at you is not and cannot be intellectual property because it has been around and taught for a very long time.
However, calling it the SPEAR is akin to calling shoes I produce Nike – that is a trademark name belonging to Tony Blauer and it would be infringing on him to use it for commercial gain.
If I took Tony’s SPEAR presentation material and began to use it as my own then it is akin to walking away with the Nike design for shoes and would be infringing on him to use it for commercial gain.
What if I took a Rory Miller seminar on Violence Dynamics and began using the information in that to improve my teaching of self defence?
What if I took Rory’s Violence Dynamics presentation and began using it verbatim in seminars of my own to make money?
Is Rory’s Violence Dynamics or ComCon or Tony’s SPEAR intellectual property?
What if I walked out the door with Randy King’s KPC curriculum and began presenting it as my own?
There is a tough question here and an easy one.
The easy question is that if I directly take the work product of Tony Blauer, Rory Miller or Randy King and begin to use it to make money then I am infringing on their intellectual property. The courses mentioned above were created through the hard work, blood, sweat and tears of those who created them and they belong to them.
If you want to know if you are infringing on intellectual property then I recommend asking yourself a few questions.
First question: Is the information you are using someone else’s?
Second question: Are you using part or all their material?
Third Question: Is there anything unique and yours about what you are presenting from the original material?
Fourth Question: Are you making money from your presentations?
Fifth Question: If using part of the material do you acknowledge sources?
If you are making money and the information is all someone else’s such as a Tony Bauer presentation or Rory Miller’s presentation or someone’s math text book then, in my opinion, under law you have infringed on their livelihood and their intellectual property.
But what if it isn’t everything you’re incorporating? This is the harder question.
I recently taught my knife defence at the Alberta Peace Officer’s 2017 annual conference and at one point a fellow who trains in another system under a great guy (who has come to train with me) pointed out one of the things I did was better than what was in their system and he couldn’t wait to show it to his teacher. So, if they adapt to my move are they infringing on my intellectual property?
If I go to a control tactic seminar and bring home different way to pin before cuffing am I doing something wrong to start teaching it?
If I teach something don’t I want those I teach to use it?
If someone put something on YOUTUBE for free how can they complain if someone actually watched, learned and changed what they do because they saw the clip? Isn’t that why it was posted?
Do I want to teach stuff no one ever uses?
Of course not.
If it is good and they do want to adapt what they do to it then what? Do they teach something they know is less effective to their students and only keep the “good stuff” for themselves?
Of course not.
If we don’t want people doing and passing on what we teach then why are we putting it out there?
The question becomes one of how much of the material the other person’s and are they making money on material not theirs. Rory Miller makes his living doing seminars so if someone took his material and began presenting it as their own are they not taking the food out of Rory’s and family’s mouth?
Yeah, they are.
If I go into a striking school and teach my “From the Ground Up” seminar on ground fighting for counter assault shouldn’t I expect them to work on it and even make it part of what is taught in the school?
Yes, I should hope it was so good that they added it to what they do and teach. Should they continue to credit the source of the material – YES.
Why credit sources?
What if in a presentation, they say this part comes from Rory Miller’s Violence Dynamics presentation something I highly recommend you go to or buy the DVD and book.
Now what? If people like the little they heard wouldn’t they take a look at Rory’s material because he was credited as the source? Does that not help put food on Rory’s plate?
If I’m at a seminar and someone presents something I find good and they point to the source the first thing I do after the seminar is look up the source and often buy their stuff.
I see that there are two approaches to parts of material being incorporated out there: Exclusive and Cooperative.
Exclusive means you do not want anyone to use anything of yours after you teach it in hopes that you keep the market to yourself, hoping to have all the business to yourself.
Cooperative means you want others to incorporate your material and credit it so that the exposure to your material to more people will bring more business to you.
I can’t say what others should do or want to do but I prefer the cooperative method and the hope that what I teach is good enough people want to incorporate it.
And I will be honest I avoid material by people who have an exclusive attitude because often reality based self defence is similar to what I do and I simply do not what a hassle of them thinking I stole their stuff. I can’t steal it because if I’ve never seen it.
So, is intellectual property important? Should it exist at all?
Yes of course it must exist. It is important because when you put the work, study and depth (sweat, blood and tears) into creating something, and it is your livelihood then it is simply wrong for someone to usurp that effort and make money from it. You can liken it to someone else picking up your pay cheque.
In martial arts, I don’t believe there is a lot that will be new but how it is used and how it is presented can be a new twist and people will find new ways and there in lies the difference and the intellectual property much like a math text that may not contain anything new but the presentation may make learning the material easier.
And just because someone is doing something like what we do doesn’t mean they stole it from us because guess what – there is nothing that hasn’t been taught before at some point.
As I said I am not a lawyer and this is not a legal discussion on what is intellectual property but if we put information out there it will be used. What else did we think would happen with it?
Material should never just have someone else’s label slapped on top and sold as yours.
But if we teach properly then some of what we teach should be seen in those we train. Shouldn’t it?
No hurt feelings with that and what I’ve had to say – I hope.