Copyright issues when using ITIL at the coalface

Axelos are shooting themselves in the foot by constraining consultants' use of ITIL.

I have been meaning to comment on copyright and trademark issues around ITIL for a while, in fact ever since this Facebook Back2ITSM post from Kaimar Karu of Axelos on 10th February

We are working on clarifying and simplifying the T&C of the use of our IP, please see below:

- As a professional, using ITIL guidance for internal use only within my organisation, I may in my own words and from my own experience provide guidance without the need for a licence. If I wish to reproduce any ITIL copyright material I will need a licence from AXELOS; for small amounts of re-use the licence may be free.

- As a professional, using ITIL guidance to train people in my organisation, I may in my own words and from my own experience provide guidance without the need for a licence. If I wish to reproduce any ITIL copyright material I will need a licence from AXELOS; for small amounts of re-use the licence may be free.

- As a consultant, using ITIL guidance to help my customers, I may in my own words and from my own experience provide guidance without the need for a copyright licence. If I wish to reproduce any ITIL copyright material I will need a licence from AXELOS, for small amounts of re-use the licence may be free. I will require a trade mark licence to use ITIL.

- As a trainer, using ITIL guidance for course material to train my customers on ITIL, I will need a licence to use the trade mark and copyright material and will need to be accredited by an Examination Institute

- As a speaker, using ITIL guidance in my presentations, I may in my own words and from my own experience provide guidance without the need for a copyright licence. If I wish to reproduce any ITIL copyright material I will need a licence from AXELOS, for small amounts of re-use the licence may be free. I may also require a trade mark licence to use ITIL, however there are many types of use that will not require a trade mark licence.

Also: in this context, this page might be helpful too: https://www.axelos.com/use-of-copyright-and-trademarks

Feedback is much appreciated. We *want* people to (be able to) use ITIL when and where it delivers value.

This needled me as we seem to have got nowhere after years of consultation and debate. COBIT licensing is excellent (see below), MOF is in the public domain in the Creative Commons, and even SFIA has seen the light. So I'm afraid my comments were a bit heated:

Sorry Kaimar but that's unworkable, unless I have misunderstood.
1) there is no way I'm going to spend the time and hassle to get Axelos permission every time I write something for a client. How many hours is the turnaround time? Absurd.
2) why on earth would i go through this nonsense when for $150 I can use COBIT freely instead
3) Axelos may think it has a monopoly position but i can assure you many clients will be less wedded to ITIL when I explain to them that they too need to apply for a license every time they quote it internally. That makes it difficult to use ITIL as their "standard" for processes. What is their documentation supposed to say? "For incident process see ITIL SO page 110. Except for the bit at the bottom of the second column where..."

Kevin Holland said

I like the idea from ISACA. Annual subs allow consultants to reuse in their work - but publications have additional reuse fees. Plus keep the ATO concept and approach.

And I added

And by all means [Axelos can] also make money off an accreditation and CPD scheme (so long as it isn't mandatory for subscribing to ITIL)
And software compliance
And an "official" conference
And....
Nickel-and-diming us on the use of ITIL at the coalface will kill ITIL. There are other revenue streams

I've given Axelos lots of room - what we call a "fair go". To the puzzlement of some. Axelos needs to demonstrate an understanding of how ITIL is used and who the true proponents of it are. Instead they seem to be putting the squeeze on: Axelos recently announced their Axelos Consulting Partner (ACP) Programme to licence ... er I mean "formally recognize [sic]" consulting organisations practicing in all areas of Axelos "global best practice" including ITIL and PRINCE2.

An interesting little bit of ITIL history:
how the spirit was lost sometime in ITIL V2. Thanks OGC
Then Here's where the rot really set in.

The old TSO line was pretty stringent. I had a letter from their lawyers because I had a book called "Owning ITIL". By a strict interpretation of their rules, you wouldn't be able to advise a client on how to implement Incident Management and in the process of doing that tell them what ITIL advises without submitting your report to the UK for quality review (!) and licensing.

This position appears to have softened with Axelos. According to the Axelos website as at 4th May 2015:

If you have developed a product or service that draws on or supports AXELOS’ best practice guidance, then you can apply for a licence to use our material or logos within it.

The key word for me here is "can", not "must". it goes on to say

Licensing AXELOS IP and being authorized to display our material clearly identifies your association with our best practice guidance and assures customers that they are buying quality accredited items.

i.e. they are selling us on the benefits not laying down the law. Because they can't.

But the line hardens when it comes to using or quoting ITIL. From the Axelos website:

To use AXELOS trade marks, copyright material or logos within your product or service you must obtain a licence from us.

But then confusingly the rest of the page talks exclusively about "training" or "products". I cant find how it applies to consulting services.

The key word this time is "use". I've spent enough time with intellectual property lawyers to be confident that service management is not Axelos's.
The terminology of ITIL has plenty of prior use. They can hardly lay claim to "Change Management".
It is the exact textual content of ITIL that is copyright. And the "essence" so you probably couldn't use the exact same full set of processes.
But even the "essence" is fraught: exactly what is the exact full set of ITIL processes? And what about the description of each process, e.g. the flowchart of Incident Management? That's derived from other works and it is by definition generally accepted practice. It has no novelty.
Hey but I'm no lawyer, and lawyers are a-holes, so I wouldn't like to guess what they'd go after.

But the real issue is that I would like to explicitly use ITIL. I'd like to say to a client: "The following is an ITIL-based Incident process", quoting and modifying the content. If Axelos think I'm going to get my ITIL Masters to be allowed to do that, or spend thousands to join their Consulting Partner Programme, or get a license from them every time I do, they're on drugs.

It seems to me the only consequence of such usage would be that clients would then want lots of ITIL training and would buy a few sets of the books. Consultants are Axelos's little butterflies (blowflies?) spreading ITIL everywhere. We should be thanked not constrained.

Contrast the Axelos guidelines with the COBIT guidelines:

The use of the term “purchase” is intended to include both those who download COBIT for free from isaca.org based on their ISACA member status as well as those who purchase COBIT...
Use Within an Enterprise
The use of COBIT within your enterprise requires a separate authorized copy of COBIT or license to use COBIT for each individual who participates in the implementation of and/or uses COBIT within your enterprise. Volume purchase discounts are available for enterprise purchases of COBIT 5 online. Enterprise use for COBIT 5 online is subject to certain terms and conditions.
An internal auditor or other employee who has purchased COBIT may provide a questionnaire based on COBIT to a business unit in preparation for an internal audit or review.
Providing COBIT training and education within the enterprise is permitted provided each attendee has a separate authorized copy of COBIT or license to use COBIT is or written permission from ISACA has otherwise been granted.
Providing Audit, Advisory and Consulting Services to External Clients
Use of COBIT is permitted for making presentations and proposals, and to develop software tools and other materials for the purpose of developing and delivering audit, advisory and consulting services.
Copies of COBIT and any of the tools, materials or output from the tools that contain more than 20% of COBIT content cannot be provided or sold to clients or prospective clients without permission or licensure from ISACA.
Each individual related to the development and delivery of COBIT-based services and products to the client is required to purchase his/her own copy of COBIT. Volume purchase discounts are available and an enterprise license is being evaluated. Contact the ISACA’s Director of Intellectual Property for more information on the potential of an enterprise license.

Clear and explicit. Each person who joins ISACA for about $150 a year can download and use up to 20% of the COBIT content (recall its twice as many processes as ITIL, and at least as many words now) as a consultant, and all of it as an internal practitioner.

As I described in Why COBIT Wins, I'll always prefer COBIT as my primary reference, but I'd use ITIL much more if I could (and of course my clients ask for it). Axelos are shooting themselves in the foot.