Joining forces: Don Tapscott: and the case for collaboration

Since the early ‘80s, Canadian author, think tank CEO and academic Don Tapscott has been exploring innovation, media, and the economic and social impact of technology. As far back as 1995, in his book The Digital Economy, Tapscott was isolating the themes that would define the ‘new economy’. He’s often described as a futurist and, from a position 20 years later, we can see the prescience of many of his predictions: a knowledge economy peopled by knowledge workers, digitisation, virtualisation, ‘internetworking’ and outsourcing, globalisation, and the expectation that workers be more entrepreneurial and innovative as automation replaces many roles. These are all aspects of today’s workplace that many in-house counsel will recognise.

Technology is being used to facilitate efficiency and help legal departments add value. Flexible working, online learning and pioneering ‘NewLaw’ forms of outsourcing are becoming commonplace. Knowhow systems, such as that developed at global drinks business Diageo, are building quality resources and facilitating team cohesion. Using ‘legalpedia’, Diageo’s in-house team members can upload precedents, guidance notes, articles and training to be accessible across the global function, with an embedded window into the department’s internal (and much-used) social network feed on Yammer. The system allows for development of bespoke areas of the platform for specialist interest groups, and even for sharing among other departments of the business.

In his 2012 TED talk ‘Four principles for the open world’, (which contributed to his book Radical Openness) Tapscott argued that the internet has given us access not only to knowledge, but to the actual inventive intelligence of people around the world. Much of his recent work has focused on the thesis that collaboration and openness will be central to economic success in the future. Building on the ideas in the 2006 book Wikinomics (co-authored with Anthony D. Williams), in 2010 Tapscott (again with Williams) published Macrowikinomics, which set out the five principles of ‘wikinomics’. These are openness, integrity, collaboration, sharing and interdependence which, while applied by Tapscott on a macro level to global business (as well as politics and education), may well be relevant on a micro level to today’s GC.

Rebuilding trust and integrity

Tapscott highlights the stalled and failing institutions of the present day – corporates, governments, media, Wall St – exposed by the global financial crisis (GFC), leaving consumer trust fundamentally undermined. At the same time, in the age of WikiLeaks, institutions are subject to enforced openness in the form of increased scrutiny. Empowered by tools such as the internet and social media, ordinary people are able to become ‘citizen regulators’. In the aftermath of the GFC, regulators themselves are stepping up, often on a pan-national basis. What is therefore needed, says Tapscott, is superior corporate integrity. Businesses need to think about improving the world, as well as shareholder returns. As he says in The Naked Corporation (co-written with David Ticoll): ‘If you’re going to be naked, you’d better be buff!

Increased regulatory intervention has dramatically impacted the daily lives of those responsible for corporate legal affairs. Anti-bribery and corruption is just one area where GCs are often spinning the plates of unpredictable national enforcement regimes and the extraterritorial reach of legislation like the US Foreign Corrupt Practices Act. GCs can no longer act in a national vacuum – if they ever could.

Although legal compliance and ethics are not the same thing, leaders of in-house legal departments are also at the ethical nerve centre of corporate life. There is often perceived to be a conflict between the roles of company ‘guardian angel’ and business partner, but Tapscott might not agree. In his 2014 20th anniversary re-issue and update of The Digital Economy, he argues that ‘business integrity is on the rise, not just for legal or purely ethical reasons but because it makes economic sense.’ Sustainability and competitive advantage in the court of public opinion is key, as Egyptian mobile phone operator Mobinil’s legal director Ayman Essam highlighted when he spoke to GC earlier this year: ‘someone with 2000 followers on Twitter saying a good or bad thing about a company makes a difference. It puts companies at risk in terms of perception and market positioning.’

Tapscott observes a growth in corporate self-scrutiny, and in Macrowikinomics he notes that ‘in a handful of high profile industries, firm-level codes of conduct are evolving into industry-wide regimes.’ In a previous issue of GC, we spoke to Richard Buchband, general counsel of global workforce expert ManpowerGroup, about the company’s zero-tolerance policy and culture of ethics concerning forced labour and human trafficking, plus its active leadership on the industry’s global trade body to promote standards across the sector in this area. Such activity has the office of the GC at its heart. For Buchband, ‘the general counsel as a member of the C-suite may be the best-positioned person to bring together or communicate the overlap between compliance, legal regulations, codes of conduct, ethical behaviour and liability.’

Models of cooperation

For Tapscott, openness is about more than being (or being forced to be) transparent; it’s about reaching out and, in some cases, joining forces. In Wikinomics, he and Williams identify seven types of modern business models that are using collaboration on a large scale. These include peer pioneers (where communities of individuals self-organise to produce an outcome, such as content or software – Wikipedia, for example); prosumers (those customers who co-innovate and co-produce products they then consume – for example, players of online game Second Life); ideagoras (marketplaces in which companies crowdsource to access qualified minds and solutions for innovation challenges); New Alexandrians (those engaged in accumulating digital libraries and databases of knowledge – for example Google’s digital library); platforms for participation (where companies allow others to use their platform to build new businesses – such as eBay); global plant floors (multiple firms collaborating as partners to create products, rather than using a fixed in-house workforce); and the wiki workplace (a workplace that uses collaborative technological tools to form communities and allow self-organisation, as opposed to being closed and hierarchical).

Says Tapscott in Macrowikinomics, ‘organisations that make their boundaries porous to external ideas and human capital outperform those that rely solely on their internal resources and capabilities and outmoded ways of working.’ The idea of shifting organisational borders might trigger alarm bells among some in-house lawyers, but Geoff Wild is pretty relaxed about it. After restructuring his own legal team along commercial lines, the director of governance and law at Kent County Council has been selling its services on the open market, providing legal advice to over 600 other public sector bodies across the UK, generating a profit in the process. ‘We’ve gone from being a cost centre to a profit centre, an income generator,’ he says, ‘and it’s based upon offering our services in a collaborative way to our public sector colleagues.’ What’s more, he wants to take this model further, and formalise the arrangement into a permanent ‘regional hub’ for public sector legal services. ‘There’s massive replication of effort there which could be eliminated with a collaborative approach and having a single public sector legal resource for each [geographical] area. By pooling resources and collectively commissioning this service, we could make vast savings.’

Letting you guard down

However, it hasn’t been plain sailing for Wild in his attempts to establish his hub. He admits that independent public sector organisations are often unwilling to let down their guard and merge any back office services, not just legal. ‘There is this resistance that you find in most organisations to sharing or pooling these services, and it’s often for no obvious reason other than organisational pride. This feeling that we don’t want to share our organisation with anybody else.’ He believes this holds true in the commercial world, too. ‘In the competitive, cut-throat business world there’s going to be a lot of fiercely protected IP and other confidential matters which will be governed by 2000-page contracts because people are so desperate to preserve their market position.’ He agrees with Tapscott that a degree of collaboration is inevitable, however – in the public sector at least – and puts the hub arrangement forward as a compromise: the efficiency savings of collaboration and open borders within the safety of a closed circle of contractually-bound organisations.

So is the collaboration, peer-sharing and open-sourcing that Tapscott promotes anathema to many organisations and their GCs? And, fundamentally, is such caring and sharing a step too far for the cautious and detail-driven mindset of the lawyer? Helen Barker, counsel for knowledge management, was pivotal in the development of Diageo’s legalpedia web app, and is keen to stress that it is not a free-for-all ‘wiki’-style system: ‘What’s really important is that when people look at the content, they can be confident that it’s up-to-date and of good quality. That requires good governance structures. We’ve spent a lot of time designing the governance structures in the system – so it won’t be a bucket of information that people then can’t find anything in.’ The system allows for collaboration across the team, to a degree. ‘We spent a lot of time making sure that once the knowhow is in the knowhow library, people cannot inadvertently edit it. So there’s contribution, but it is carefully managed,’ says Barker.

Governing the masses

But Ben Gross disagrees that in-house lawyers cannot tolerate deep collaboration. He is general counsel of Genius, a user-generated content company that gives community members an online platform to annotate song lyrics and other texts, adding to a bank of available knowledge around each work. In Tapscott’s terminology, Genius is a peer producer, populated by prosumers. ‘We’re a deeply collaborative platform,’ says Gross. ‘Every annotation is a little wiki and is the result of a collaborative writing effort – often dozens of people will contribute to a single annotation.’ The biggest legal challenge for an operation like this, he says, is communicating to users the importance of respecting copyrighted content, and explaining the occasional need to remove content, without alienating them and discouraging them from contributing, thereby cutting off the site’s blood supply. But getting that tone right is not that difficult, says Gross. Genius also has an enormous body of community standards, ranging from what you should and shouldn’t include in annotation, right through to prose style, proper linking, citing and sourcing. ‘We’re trying to establish a real culture around knowledge production on Genius that is robust beyond the minimum requirements of legality,’ he says.

At Kent County Council, Geoff Wild is on the same page as Gross. His regional hub model is predicated on directly porous borders in a way that Genius, as a single entity, is not. But he holds a similar attitude to risk. ‘If you’ve got risk management nailed down and you’ve got effective systems and procedures in place to identify, monitor and control risk, then that is universally applicable – you can transpose that across other organisations as well as your own. It does require introductions of established principles, practices and procedures to get to that stage. They won’t happen automatically, but it’s not an impossible area to govern.’

Interestingly, back at Genius, another of Tapscott’s theories is in evidence: that of the decline in the hierarchical structure that typifies the traditional organisation where work product is produced entirely by in-house employees, in favour of the self-organising, volunteer workers seen in peer producing entities. Gross observes that in addition to the standards written by Genius staff, many have been contributed by the most active community members. Tapscott predicts that workplaces will increasingly follow this model. ‘Self-organising communities on the Web have proved time and time again that they can be more effective in creating value than hierarchies – so why should it be different in the workplace?’ he asks in Wikinomics. It should be noted that Genius does not have a self-organised internal corporate structure, but such collaboration on the governance of the product hints at the possibility of the realisation of Tapscott’s theory.

Above all, says Gross, there is no conflict between being a lawyer and running a vibrant community crowd-sourced site: ‘We understand that our users and the content they generate are the value that Genius brings to the table, and so the last thing I would do is try and stifle that through some sort of reverence for formal control over everything that happens on the site. That’s completely antithetical to what we do.’

I’’ve got an ideagora

At open-source software platform GitHub, GC Julio Avalos imagines removing even more boundaries, and implementing an almost ideagora-style approach to legal services, fully open-sourcing some elements in the same way that individual coders fix glitches on others’ programming using his company’s software. For example, an employee handbook could be turned into an open-source document, so that ‘a lawyer in the American Midwest who is now a stay-at-home mother but is still tuned into employment issues… She could go to my handbook and, say an opinion came out yesterday which made that sentence on page six illegal, I could look at her pull request, press merge and be in almost real-time compliance,’ he told us earlier this year.

Crucially, not even Tapscott advocates indiscriminate sharing: ‘… it makes sense to protect your crown jewels. Instead we advocate a portfolio approach where organisations diversify intellectual property holdings across a range of open and closed offerings’, says Macrowikinomics. Should Tapscott’s predictions come true, it seems that the lawyer’s job will be secure.

Going digitally native

Tapscott believes that the new generation, the ‘digital natives’ are much more interactive, and as a result, naturally more collaborative than their baby boomer parents: ‘Rather than being flaccid recipients of mass consumer culture, the “Net Gen” spend time searching, reading, scrutinising, authenticating, collaborating and organising’, he says in The Digital Economy (Anniversary Edition). Ben Gross (although only in his early 30s) is sceptical about whether growing up around technology makes you better at using it, but has noticed that younger people ‘just have an assumption about the way that they’re going to interface with the world, and that a lot of that way will use technology and digital platforms, which wasn’t an assumption when I was a kid.’ Among the predominantly young user-base of Genius, this has translated into a relaxed approach to using the internet, which includes a naïve expectation that they can blithely use content such as images found on Google.

Faced with a new generation of thoroughly networked consumers, companies must ‘truly engage’ with their customer base, says Tapscott in The Digital Economy (Anniversary Edition). In-house counsel are not immune from his contention that ‘relationships are now assets’, as can be seen from the emphasis successful GCs place on internal networking and the development of legal services aligned with business needs, rather than the ivory tower provision of yore.

Use your imagination

In 1995’s The Digital Economy Tapscott observed that ‘in the innovation economy, human imagination is the main source of value,’ and this can certainly be extrapolated to apply to GCs when we observe the wealth of innovations that the best in-house departments are making to enhance their value add. As Geoff Wild says, ‘the good GCs are clearly demonstrating that they add far more value than the black letter law that they originally qualified in, and in fact, they take the lawyer badge off most of the time because it’s important that their organisations see them as something far more than simply the lawyer in the room.’ This will be of great importance in years to come, predicts Wild, in a world where universally available legal knowledge, systematisation, commoditisation, automation and intelligent analytics might make many of the (human) lawyer’s functions obsolete. In such a world, according to Wild, the in-house lawyer must be constantly ‘reinventing themselves and their profession, in order simply to keep up with the pace of change that’s going on in the technology sphere, and the changing demands and expectations of consumers in legal services.’