University of Canberra/Proposed policy on intellectual property

Stable version as of 31 July 2011

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Shortcut to this page:
A recording of James and Leigh presenting the principles of this proposed policy to Knowledge Commercialisation Australasia (KCA) annual conference 2010. See Open education and research at the University of Canberra for more information about this talk.
Other versions and resources:
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Video on Blip.tv
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Slides: Leigh Blackall, James Neill

Completion status: this resource is considered to be complete.

This is a submission to the University of Canberra review of their policy on intellectual property. It has been developed on this wiki, with all consultations and meetings documented on the discussion page.

Key points of the proposal:

1. Staff, students and partners retain ownership of their IP
2. IP published through UC adopts a Creative Commons Attribution copyright license, with an opt-out process triggering targeted education, protection, legal and/or commercialisation services
3. Indigenous knowledge and culture is protected and autonomy promoted

Consultation

This is an openly editable submission. Changes made to date can be seen via the edit history. Consultation, comments and discussion around this submission continuously takes place until the University's review process comes to a close. All discourse around this submission is recorded on the discussion page. Please Feel free to contribute either by writing in the discussion, editing the submission directly, or contacting the manager of this submission.

Background

A first, interim University of Canberra intellectual property (IP) policy became official in 2003 and remains as current policy as of May, 2011. This interim policy, however, was intended for replacement by a revised, more comprehensive policy in 2006 or 2007. Such a policy review was undertaken during 2010-2011, and this is a proposed new IP Policy for the University of Canberra.

Note that the UC Policy Framework Manual - Sections 6 and 7 - describes how to develop and revise policy at UC. Also note that the Enterprise Bargaining Agreement Part C "Management Change and Workplace Consultation" - Section C2.3 lists the IP policy as affecting all staff and therefore C2.2 applies which states that "The University undertakes to consult affected staff and their representatives on any proposed changes to the following policies and any new policies that have a significant and substantial effect on staff."

The University's Faculty of Health hosted The UC IP mini conference on 11 June 2010. All were welcome to attend and to come forward with a 10 minute talk to present within a 2 hour time allowance. Insights and findings were brought back into this submission.

Scope

• Values and principles
• Objectives
• Defining intellectual property
• Relevant legislation
• Defining ownership
• Roles and responsibilities
• Procedures
• Dispute Resolution
• Further information and education
• External links

Values and principles

The University of Canberra appreciates its role in society for research, development, teaching and learning. Intellectual work is core to that role. The free and open sharing of knowledge and scholarship remains the most effective way to further the effectiveness of that work. The University of Canberra will promote the free and open sharing of intellectual work.

The guiding principles for managing intellectual property at the University of Canberra are:

1. UC encourages the free and open sharing of information, knowledge and ideas
2. UC will not approach students to undertake contractual negotiations around their IP
3. UC makes no claim over the IP of its staff, students or partners unless contractually agreed otherwise
4. UC recognises the benefits it accrues through association to its staff, students' and partners' IP
5. UC is resourced to offer students, staff and partners legal, protective and commercial services for IP
6. UC respects and supports the traditions, sensitivities and autonomy of Indigenous communities everywhere

Objectives

The University's objectives with respect to IP are to:

1. Promote access to, and use of, learning and research materials at the University
2. Support staff, students and partners in the development, management and protection of their intellectual work
3. Develop the University's reputation through the growth and recognition of staff, students and partners
4. Be recognised and valued for staff, students and partners making contributions to industry, commerce, governance and community
5. Ensure judicious, openly-governed, and value-added use of public funding
6. Obtain appropriate return for facilities, resources and services provided by the University
7. Support the autonomy of Indigenous Australians over their own intellectual work and culture

Defining intellectual property

The University of Canberra includes the following in its definition of IP:

Moral Rights

Moral rights means the right of attribution of authorship of a work, the right not to have authorship of a work falsely attributed, and the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment). These rights are established by the Copyright Act 1968 (Commonwealth of Australia). If the works are used in a jurisdiction other than Australia, any similar right capable of protection under the laws of that jurisdiction will apply.

Educational resources

Educational resources are materials used in the provision of lectures, tutorials, seminars, workshops, field classes, laboratory classes and other teaching activities conducted by staff, students, contractors and partners at the University and may include overhead transparencies, slides, videos, audio recordings, photographs, maps, diagrams, handbooks, manuals, unit outlines, exercises, assessment schedules, and other media. This policy seeks to promote the use and development of open educational resources. For procedures relating to these works, see Copyright.

Research and development

Research is defined as:

“

the creation of new knowledge and/or the use of existing knowledge in a new and creative way so as to generate new concepts, methodologies and understandings. This could include synthesis and analysis of previous research to the extent that it is new and creative. This definition of research is consistent with a broad notion of research and experimental development (R & D) as comprising ‘creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of humanity, culture and society, and the use of this stock of knowledge to devise applications.

”

This policy seeks to promote the open, transparent and shared experience of research and development. For procedures relating to these works, see Copyright and Patenting.

Science and technology

Science, technology and its development refers to inventions and scientific products. This policy seeks to promote the open, transparent and shared development of science and technology, continuously striving for an appropriate balance with commercial interests in the work. For procedures handling such work, see Patenting.

Indigenous knowledge and works

Indigenous knowledge and works is defined as the traditions, language, artifacts, technology, concepts, inventions, culture, protocols and procedures of Indigenous Australians and their communities. It includes recordings and contemporary interpretations and practices, whether they are by Indigenous Australians or not. This Policy seeks to protect the interests and sensitivities of indigenous Australians, playing a guardian role for Indigenous knowledge, while supporting the autonomous and empowered control of that knowledge by Indigenous Australians. For procedures relating to these works, see Using Indigenous IP.

Cultural expressions, artifacts, commentary

Cultural expressions, artifacts, and commentary refer to performance, exhibitions, displays, crafts, recordings, and critique and commentary on these. This policy seeks to promote cultural and artistic exchange, understanding and remixing, while protecting the moral identity, integrity and intent of the original. For procedures relating to these works, see Copyright.

Designs and inventions

Designs and inventions refer to work that represents an idea or set of ideas. It includes text and imagery that describe the idea/s, drawings and models, audio and video descriptions or representations, or presentations and performance. This policy seeks to promote the open and collaborative development of design and invention, and strives for a continuous balance with commercial interests in such work. For procedures relating to these works, see Copyright and Patenting.

Relevant legislation

• Patents under the Patents Act 1990
• Copyright vesting by virtue of the Copyright Act 1968 in literary works (including computer programs), dramatic works, musical works, artistic works, films, sound recordings, broadcasts, published editions and certain types of performances and non-copyright protection for certain performances;
• Trade marks registered under the Trade Marks Act 1995
• Designs registered under the Designs Act 2003
• New plant varieties under the Plant Variety Rights Act 1987 (now replaced by the Plant Breeder's Rights Act 1994
• Circuit layouts (computer chips) under the Circuits Layout Act 1989

Defining ownership

The Intellectual Commons

The Intellectual Commons refers to a collectively owned and shared resource of knowledge and information. The University encourages staff, students and partners to publish intellectual work with open copyrights, in open standard formats, using accessible and popular distribution channels (both online and physical collections), in the spirit of contributing to and building on The Intellectual Commons so that it is accessible and reusable by people anywhere, and with minimal barriers or restriction, now and in the future.

Staff, students and partners

Staff, students and partner ownership refers to work by people employed by, studying with, or contracted to the University in some way. Staff, students and partners retain full ownership, copyrights and responsibility for IP they create or have copyrights to, before, during and after their relationship or employment with the University. In special circumstances the University may wish to enter into ownership negotiations with any of these people, in which case contracts will be drawn that specifically set out the terms of ownership different to above.

UC ownership

With the exception of branding and marketing, or where work is especially commissioned under specific contractual arrangement, the University makes no general claim of ownership to the IP of its staff, students or partners. Instead, it asks people to use the Creative Commons Attribution license when they use the University as a platform for research, development, publishing and teaching. UC acknowledges that there will be situations where this is not appropriate or possible, and in such situations an opt-out process is provided.

In some instances, the University may wish to negotiate an ownership interest in IP. Such negotiations would be contractual, an exception to the norm, and explicitly outline the terms of ownership or interest in specific works or projects.

In instances where the the University holds ownership over IP prior to this policy (where it may be determined at common law that the university has an interest), the University will reassign ownership and IP rights back to that staff member, student or partner. If such reassignment cannot by achieved due to loss of contact with the person, the University will determine new licenses and terms for the works.

Indigenous ownership

Indigenous ownership refers to the IP of indigenous people the world over, with specific focus on Indigenous communities in Australia. UC respects Indigenous ownership and custodianship over Indigenous knowledge, and refers to local Indigenous representatives for advice on matters relating to the use of Indigenous IP, including known derivatives.

Third party ownership

Third Party Ownership refers to works by people other than staff, students and partners of the University. The University, its staff, students and partners, each accept their respective responsibilities for the intellectual property rights of third parties.

Roles and responsibilities

The Intellectual Property Officer

The Intellectual Property Officer (IPO) represent the interests of the University in IP, is responsible for managing IP in the University, and oversees the implementation of this policy, especially the requirements as to reporting information about IP usage and education set out in this section. The IPO will:

• offer consultation services and legal advice to staff, students and partners on copyright, patents, trade marks, designs, commercialisation, protection and defense.
• conduct a review of this policy at periodic intervals, or as circumstances demand, and make recommendations as to appropriate changes;
• provide advice to the University Council on IP issues generally.
• provide advice and services to staff, students and partners, including fee based services and contractual negotiations with the University.
• collect statistics and report on usage and value of the IP created by the University, its staff, students and partners
• report usage of royalty generating IP to the Copyright Agency Limited
• promote the principles of this policy with other universities around Australia and internationally

Library

The University library and its librarians play a critical role in the implementation and maintenance of this policy. The library manages a repository of protected and free works, records usage and reports to the IPO. Often the library is a first point of contact for staff, students and partners, giving informed informal advice as well as training with in the use of sourcing free and open resources. The University library will:

• Support the duties of the IPO
• Distinguish between restricted and non-restricted information and resources in the Library collections
• Offer training and support to staff, students and partners to use free and open information and resource alternatives to restricted and fee-based resources
• Record the use of restricted information and resources for reporting to the IPO and Copyright Agency Limited
• Record the use of non-restricted information and resources for reporting to the IPO

Staff, students and partners

Staff, students and partners have an autonomous professional relationship with the University. The University supports their intellectual work infrastructure, promotion, income, administration, and security. Staff, students and partners are expected to contribute to the University's governance, and to respect the policies and procedures of the University.

The Ngunnawal Centre

The Director of the local Ngunnawal Centre offers advice and permissions for the use of Indigenous knowledge and intellectual property, including all derivatives and interpretations. The Director of the Ngunnawal Centre offers advice to indigenous and non-indigenous Australians of their rights and responsibilities with Indigenous Knowledge and intellectual property.

Student association

The University will seek the cooperation of the student associations to act as sources of independent advice for students concerning IP matters and the University will advise students to seek such independent advice before they are asked to agree to undertake activities that may spawn IP. The University will include reference to this policy in relevant documentation to students, for example, in the "Gold Book".

Third parties

Third parties are expected to meet their obligations under the relevant legislation relating to IP. The University monitors third party use of its IP and will will protect and defend its rights and responsibilities under the relevant legislation. The University pays royalties to the Copyright Agency Limited and potentially other rights administration bodies for the use of third party Content. If a third party feels their rights have been infringed by the University, please contact the IPO. If a third party feels their rights have been infringed by staff, students or partners of the University, please contact the staff, students or partners directly. If needed, they will refer the matter, or seek advice from the IPO.

Procedures

Using Indigenous IP

All Indigenous IP is restricted and must be marked as such. Use must be permitted by the appropriate representative obtained through the Ngunnawal Centre or relevant local representatives. Indigenous IP should be marked as such, listing the appropriate custodian to the work and the restriction sin place. Permission must be obtained through consultation with the stated custodian and any relevant local indigenous representatives, on the copying, appropriation, interpretation or derived use of indigenous IP.

Using third party IP

Any use beyond what is expressly permitted by a third party, or what is permitted in Copyright Act 1968 (Commonwealth of Australia), such as Fair Dealings, requires written permission from that third Party. Normal academic procedures for citing, referencing and giving attribution remain in all cases.

It being the case that all IP being presented, expressed, published and/or distributed on UC platforms, such as websites, printed material, courses, buildings and other support infrastructure, automatically carries a Creative Commons Attribution Australia 3.0 license, the staff, student, or partner must ensure that this does not contravene any rights of a third party. If there is doubt, the work must be marked All Rights Reserved to the third party, and the IPO notified.

Negotiating agreements

The University encourages staff, students and partners to consider the value and benefits of freely sharing their IP, but respects their wishes to do otherwise. To this end it offers support to staff, students and partners in the negotiation of agreements around IP. Standard support is in helping staff, students and partners negotiate copyrights and release under the terms of the Creative Commons Attribution Australia 3.0. Advice on this license, as well as optional restrictions beyond this default position, is available from the IPO and the IPO's support agents in the University.

Confidentiality

If the IPO is advised or believes that the confidentiality of certain information must be maintained in order for IP to be protected or successfully exploited, the IPO must:

• consult in confidence with the originator and any other relevant parties; and
• determine a time when publication of the information may take place, taking into account the principle of free and open sharing of information, knowledge and ideas.

Publishing

The University adopts a default copyright license of Creative Commons Attribution Australia 3.0 for work that is published though UC platforms, facilities and brand names/trademarks, attributing the original author as being at UC. It is important that UC, staff, students and partners ensure that work they are publishing respects the rights of any third party content being used, and has either obtained written permission to publish third party work, or has ensured that the expressed conditions of the third party have been met. The University provides a simple procedure for anyone wishing to assert rights and apply restrictions outside this default position, and the IPO and support agents will advise and assist in the governance of this procedure.

So as to help ensure the quality and sustainability of work published through the University's platforms, facilities and brand names/trademarks, the university encourages use of open standard formats. Where possible, staff, students and partners are encouraged to publish and/or list their work in open standard formats alongside non-open formats where the case may be. Training in this procedure is available upon request.

Open source development

The University encourages open source education, research and development. Where the university tenders for, or commissions the work, it will preference open source options. Staff, students and partners engaging in open source development should respect the rights and responsibilities expressed in the development. Advice and assistance in open source development is available through the IPO.

Copyright

1. The University shall observe the Moral Rights of its staff members in accordance with the provisions of the Copyright Act 1968 (Commonwealth of Australia).
2. The University uses the Creative Commons Attribution Australia 3.0 copyright license for work it owns through commission or contract, and sets this copyright license as the default for IP being presented, expressed, published and/or distributed on UC platforms, such as websites, printed material, courses, buildings and other support infrastructure, trademark or branding. Staff, students and partners wishing to apply protective restrictions beyond this default, should mark their work accordingly, and notify the IPO.
3. The University prefers the use of third party work that carries a free copyright license. The University pays annual royalties for staff, students and partners who copy and distribute third party works that carry non-free copyright licenses. As a result, the IPO needs to keep a record of the use of such third party material. Staff, students and partners are asked to mark restricted and reserved works accordingly, and notify the IPO of its use. This is to both to ensure the rights of the third party are respected, and to ensure accurate royalty payments are made to the third party's agent.
4. The IPO should strive to maximise the extent to which existing IP be relicensed Creative Commons BY, taking account of undue administrative burden this may cause. Staff, students and partners are supported by the IPO in requesting that restricted IP be relicensed Creative Commons BY on application. Negotiation with the third parties will be required to ensure release under Creative Commons BY for IP which is not owned by the University, or is shared with a 3rd party. New contracts or agreements with a third party should endeavour to include a clause clearly stating the University’s obligation to publish relevant data and that this be under a Creative Commons BY licence.
5. Any decision to withhold the release of IP, other than where there is a legal obligation to withhold release, should only be made with the agreement of, or in conformity with policies endorsed by the IPO and consistent with the Australian Government’s FOI policy, noting that:
   1. In the case of structured data, the University and involved parties must exhaust options to protect privacy and confidentiality before seeking an exemption
   2. Individuals and involved parties must proactively identify and release, without request, such data that might reasonably be considered as holding value to parties outside the University.
   3. The University should engage other Universities and related Government bodies to extend these principles into a national information policy agreed between all levels of government; federal, state, territory and local.
   4. Each year the IPO, in consultation with related officers, should develop and agree a common methodology to inform the public on the social and economic value generated from published IP.
   5. The University should use the common methodology to report its performance in the release of IP in its annual reports, commencing from the first anniversary of the establishment of this policy.
   6. The IPO should annually publish a report outlining the contribution of the University to the consolidated value of public knowledge, commencing from the first anniversary of the establishment of this policy. The report should be published online and be accessible for comment and discussion.
   7. Following University acceptance of the initial ‘Value of IP Report’, the IPO should consider the development of a ‘lite’ version of the common methodology for use by all individuals, disciplines, faculties and work groups.

Patenting

The University can assist staff, students or partners in researching and registering a patent through the IPO. At the discretion of the IPO, this service can sometimes involve contractual negotiations, where the University may wish to take an interest in the IP being patented, or charge a fee for service. In such cases, the IPO would be involved on UC's behalf in:

• Registering a patent
• Collecting royalties on a patent

Trademark and/or brand

The University can assist staff, students or partners in establishing a trademark through the IPO and Marketing. At the discretion of the IPO and Marketing, this service can sometimes involve contractual negotiations, where the University may wish to take an interest in the IP being patented, or charge a fee for service.

Commercialisation

The University can assist staff, students or partners to commercialise their IP through the IPO. At the discretion of the IPO, this service can sometimes involve contractual negotiations, where the University may wish to take a commercial interest in the IP, or charge a fee for service.

Where the University negotiates a contracted interest in the commercial exploitation of IP created by staff, students or partners, the University will seek to protect the rights of the originator by:

• offering a "fair share" of commercial returns resulting from the commercial exploitation of the property.
• due acknowledgment and attribution - in line with the moral rights that arise under the Copyright Act 1968 (Commonwealth of Australia).
• offering an input in the development of the IP.
• not allowing interference with the assessment of a student's academic performance; and
• that a student is treated in accord with the provisions of this document.

All commercialisation efforts must take place in the full knowledge of the legal and contracted owners of the IP.

After deducting costs of protecting, marketing and administering the IP, net revenues received by the University will be distributed according to Table A below except where originator(s) choose to negotiate a different arrangement with the University. All decisions taken by the IPO Officer in respect of this section will be reported to the University Council. Where the University derives any financial return from the commercial exploitation of IP, it must be distributed according to the provisions set out below. Where more than one originator is involved, they must decide how the originator's share of annual net revenue is to be divided between them and inform the IPO of their decision. An agreement reached by the University with a third party might include assigning the rights to the IP to the third party in return for an up-front payment or for the payment of royalties or for both.

Table A

Annual Net Rev	Originator	Faculty, School	University or Division
The first $15,000	100%	0%	0%
the next $35,000	60%	20%	20%
the next $50,000	50%	25%	25%
more than $100,000 then the remainder	40%	30%	30%

Using alternatives

The University respects the wishes of staff, students and partners should anyone wish to refer to an alternative means to knowledge management and dissemination. The IPO will seek to understand that alternative and offer advice on how the University can accommodate and support that alternative.

Protecting and defending IP

The University protects and defends its IP through the Intellectual Property Officer (IPO). The IPO can assist staff, students or partners in protecting and defending their IP. At the discretion of the IPO, this service can sometimes involve contractual negotiations, where the University may wish charge a fee for service.

Dispute resolution

Should a dispute arise between staff, students, the University or third parties, the IPO is to be notified in writing, detailing the dispute and its background.

Mediator appointment

If a dispute arises as to the operation of this policy, or as to any matter on which the operation of this policy hinges, the IPO must appoint a mediator with professional expertise in IP and sound awareness of this policy, within two weeks of receiving written notification. The mediator will assist the parties in resolving their dispute, within three consultation meetings. If a resolution cannot be found within three consultations, the IPO must appoint an Arbitrator within four weeks of the final mediated consultation.

Arbitrator

If a dispute cannot be resolved through the assistance of a mediator, the IPO must appoint an arbitrator to investigate and decide the matters in dispute. This appointment must be within four weeks of the third and final mediated consultation. The Arbitrator must have professional expertise in IP law, the Copyright Act 1968, sound understanding of this Policy, and experience in arbitration.

Arbitration procedure

The arbitrator must adopt procedures that ensure that each party is given a fair hearing. Should a student or staff member consider that just and fair procedures have not been followed they may seek redress through the staff grievance procedures or through the University Moderator, as appropriate.

Mediator and arbitrator selection

In selecting a mediator or arbitrator, the IPO must choose a person who is acceptable to all parties. If the parties cannot agree within 30 days, the Vice-Chancellor must appoint a person as mediator or arbitrator, as the case may be.

Further information and education

Annual education program

The University will establish, annually, an IP education program with the following objectives:

• to alert staff and students to their rights, responsibilities and opportunities in relation to IP;
• to alert staff and students as to any changes to this policy; and
• to generate a better understanding of IP issues in general, and so contribute to the creation within the University of a more cooperative and productive environment for learning, teaching, scholarship and research.

External links

• The Copyright Act 1968
• Creative Commons Attribution 3.0 Australia
• IP policy (ucspace)
• UC IP policy comments (James Neill)
• Developing copyright policy at UC (Leigh Blackall)
• Otago Polytechnic's policy on intellectual property
• UC copyright guide