Intellectual Property/Proposed policy and procedures for Australian research and education

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Slides: Leigh Blackall, James Neill ]]

Key points

 * 1) Academics and staff, students and partners retain ownership of their intellectual property
 * 2) Intellectual property is licensed under a Creative Commons Attribution copyright license, with an opt-out process that triggers focused and efficient intellectual property management
 * 3) Indigenous knowledge and culture is protected, and autonomy promoted

Consultation
This remains an openly editable submission. Changes made to date can be seen in the edit history. Development notes, consultation, comments, discussion and events around this submission are recorded on the talk page.

Background
Initially, this policy was developed as a submission to the University of Canberra in their review of policy and procedures relating to intellectual property 2010/11. . It has since been reworded so as to be a proposal to universities generally.

The University of Canberra's first intellectual property policy became official in 2003. This interim policy was intended for replacement by a revised, more comprehensive policy in 2006 or 2007. Such a policy review was undertaken during 2010-2011, and a small number of University academics from the University's Faculty of Health started preparing a submission. Their work began by organising an open conference on intellectual property, where guests and other academics and staff spoke around the issues. They then began drafting what they thought would be an ideal policy and procedure, seeking comment from key stakeholders, and presenting it to critical audiences. All events, development, and consultations are documented on the discussion page.

The submission gained wide support from the National Tertiary Education Union and members of the Federal Government of the day, but it was ignored by the University of Canberra and none of its key points were considered or adopted in the University's new policy process or outcome.

It was later decided by the primary authors of the submission, to move the page and change the title so as to become a generic proposal for Australian research and education, and not only focused on the University of Canberra.

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
We appreciate the role in society for research, development, teaching and learning. Intellectual work is core to that role. Free and open sharing of intellectual work is the ideal way to further the effectiveness of that work. We aim to promote the free and open sharing of intellectual work.

Our guiding principles for managing intellectual property are:
 * 1) to encourage the free and open sharing of information, knowledge and ideas
 * 2) that institutions of research and education make no claim over the intellectual property of its academics and staff, students or partners unless contractually agreed otherwise
 * 3) that institutions of research and education recognise the benefits it accrues through association to its academics and staff, students' and partners' intellectual property
 * 4) that institutions of research and education are resourced to offer students, academics and staff and partners legal, protective and commercial services for intellectual property
 * 5) that everyone respect and support the traditions, knowledge, culture, sensitivities and autonomy of Indigenous communities everywhere

Objectives
Our objectives with respect to intellectual property are to:
 * 1) Promote access to, and use of, research and education materials
 * 2) Support academics and staff, students and partners in the development, management and protection of their intellectual work
 * 3) Help to develop the reputation of Australian institutions of research and education through the growth and recognition of academics and staff, students and partners
 * 4) Help to ensure that the intellectual work of academics and staff, students and partners is recognised and valued by wider society for the contributions they make to industry, commerce, governance, culture, community and society
 * 5) Ensure judicious, transparent and openly-governed, value-added use of public funding to education and research
 * 6) Obtain appropriate return for facilities, resources and services provided by institutions of research and education
 * 7) Support the autonomy of Indigenous Australians over their own intellectual work and culture

Defining intellectual property
We include the following in its definition of intellectual property:

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 academics and staff, students, contractors and partners to the institution of research and education 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 intellectual property.

For further and broader consideration in this area, Brian Martin, Georgina Stewart, Bruce Ka’imi Watson, Ola Keola Silva, Jeanne Teisina, Jacoba Matapo & Carl Mika (2019): Situating decolonization: An Indigenous dilemma, Educational Philosophy and Theory

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

The Intellectual Commons
The Intellectual Commons refers to a collectively owned and shared resource of knowledge and information. We encourage academics and 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.

Academics and staff, students and partners
Academics and staff, students and partner ownership refers to work by people employed by, studying with, contracted to, or working with an institution of research and education in some way. Academics and staff, students and partners retain full ownership, copyrights and responsibility for intellectual property they create or have copyrights to, before, during and after their relationship or employment with the institution of research and education. In special circumstances the institution of research and education 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.

Institution of research and education ownership
With the exception of branding and marketing, or where work is especially commissioned under specific contractual arrangement, the institution of research and education makes no general claim of ownership to the intellectual property of its academics and staff, students or partners. Instead, it asks people to use the Creative Commons Attribution license when they use the institution of research and education as a platform for research, development, publishing and teaching. The institution of research and education 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 institution of research and education may wish to negotiate an ownership interest in intellectual property. 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 institution of research and education holds ownership over intellectual property prior to this policy (where it may be determined at common law that the institution of research and education has an interest), the institution of research and education will reassign ownership and intellectual property rights back to the relevant academics and staff members, students or partners. If such reassignment cannot be achieved due to loss of contact with the person/s, the institution of research and education will determine new licenses and terms for the works that are in the spirit of this policy.

Indigenous ownership
Indigenous ownership refers to the intellectual property of Indigenous people the world over, with specific focus on Indigenous communities in Australia. The institution of research and education respects Indigenous custom, ownership and custodianship over Indigenous knowledge, and refers to their local Indigenous representatives for advice on matters relating to the use of Indigenous intellectual property, including known derivatives.

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

The Intellectual Property Officer
The Intellectual Property Officer represents the interests of the institution of research and education in matters of intellectual property. They are responsible for managing intellectual property in the institution of research and education, and overseeing the implementation of this policy, especially the requirements as to reporting information about intellectual property usage and education set out in this section.

The intellectual property officer will:
 * 1) Offer consultation services and legal advice to academics and staff, students and partners on the notion of an 'Intellectual Commons', copyright, patents, trade marks, designs, commercialisation, protection and defense.
 * 2) Conduct a consultative and democratic review of this policy at periodic intervals, or as circumstances demand, and make recommendations as to appropriate changes.
 * 3) Provide advice to the institution of research and education on intellectual property issues generally.
 * 4) Provide advice and services to academics and staff, students and partners, including fee based services and contractual negotiations with the institution of research and education.
 * 5) Collect statistics and report on usage and value of the intellectual property created by the institution of research and education, its academics and staff, students and partners.
 * 6) Report usage of royalty generating intellectual property to the relevant overarching copyright agency
 * 7) Promote the principles of this policy with other universities around Australia and internationally

Library
The institution of research and education's 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 intellectual property officer. Often the library is a first point of contact for academics and staff, students and partners, giving informed informal advice, as well as training in the use of free and open intellectual property.

The institution of research and education's library will:


 * 1) Support the duties of the intellectual property officer.
 * 2) Distinguish between restricted and non-restricted information and resources in the Library collections.
 * 3) Offer training and support to academics and staff, students and partners on the use of free and open information and resource alternatives to restricted and fee-based resources.
 * 4) Record the use of restricted information and resources for reporting to the Intellectual Property Officer and Copyright Agency Limited.
 * 5) Record the use of non-restricted information and resources for reporting to the intellectual property officer.

Academics and staff, students and partners
Academics and staff, students and partners have an autonomous professional relationship with the institution of research and education. The institution of research and education supports their intellectual work with infrastructure, promotion, income, administration, quality assurance and security. Academics and staff, students and partners are expected to contribute to the institution of research and education's governance, to act in the interest of colegiality, and to respect the policies and procedures of the institution of research and education.

Academics and staff, students and partners will:


 * 1) Actively maintain due diligence with respect to the intellectual property rights of others,  and their own works.
 * 2) Use a Creative Commons Attribution copyright license, or the opt out process provided, when copyrighting works.
 * 3) Consult with the Library and Intellectual Property Officer when questions arise around intellectual property.

The (local) Indigenous centre
The Director of the local Indigenous centre (replace with the name of the centre) offers advice and permissions for the use of Indigenous knowledge and intellectual property, including all derivatives and interpretations; and assists with communications and negotiations between and with Indigenous stakeholders generally. The Director of the Indigenous centre offers advice to Indigenous and non-Indigenous Australians of their rights and responsibilities with Indigenous Knowledge and intellectual property.

Student association/union
The institution of research and education will seek the cooperation of the student associations to act as sources of representative advice concerning intellectual property matters, and the institution of research and education will advise and support students to seek independent advice before they are asked to agree to undertake activities that may be affected by notions of intellectual property. The institution of research and education will include reference to this policy in relevant documentation to students, for example, study guides, scholarships, contracts and other.

Third parties
Third parties are expected to meet their obligations under the relevant legislation relating to intellectual property. The institution of research and education monitors third party use of the intellectual property of is constituents and will protect and defend rights and responsibilities under the relevant legislation.

The institution of research and education 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 institution of research and education, please contact the intellectual property officer. If a third party feels their rights have been infringed by academics and staff, students or partners of the institution of research and education, please contact the academics and staff, students or partners directly. If needed, they will refer the matter, or seek advice from the intellectual property officer.

Using Indigenous intellectual property
All Indigenous intellectual property is restricted and must be marked as such. Use must be permitted by the appropriate representative obtained through the appropriate Indigenous representative group, or relevant local representatives. Indigenous intellectual property should be marked as such, listing the appropriate custodian to the work and the restrictions in 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 intellectual property.

If Indigenous intellectual property is passed to the Intellectual Commons, it is governed under those terms with author and ownership attribution likely to include reference to custodians and communities.

Using third party intellectual property
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 intellectual property being presented, expressed, published and/or distributed on institution platforms, such as websites, printed material, courses, buildings and other support infrastructure, automatically carries a Creative Commons Attribution Australia 3.0 license, the academics and 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, and the intellectual property officer notified.

Negotiating agreements
We encourage academics and staff, students and partners to consider the value and benefits of freely sharing their intellectual property, but respect wishes or obligation to do otherwise. To this end the institution of research and education offers support to academics and staff, students and partners in the negotiation of agreements around intellectual property. Standard support is in helping academics and 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 intellectual property officer and the intellectual property officers' support agents in the institution of research and education.

Confidentiality
If the intellectual property officer is advised or believes that the confidentiality of certain information must be maintained in order for intellectual property to be protected or successfully exploited, the intellectual property officer 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 institution of research and education adopts a default copyright license of Creative Commons Attribution Australia 3.0 for work that is published through its platforms, facilities and brand names/trademarks. Attribution of authorship or ownership of work goes to the original author, owner or custodian.

It is important that the institution, academics and staff, students and partners ensure that work they are publishing respects the rights of any third party content being used. Permissions to publish or distribute such work must have obtained written permission and ensured that the expressed conditions of the third party have been met.

The institution of research and education provides a simple procedure for anyone wishing to assert rights and apply restrictions outside the default copyright position of Creative Commons Attribution, and the intellectual property officer 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 institution of research and education's platforms, facilities and brand names/trademarks, the institution of research and education encourages use of open standard formats. Where possible, academics and 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 institution of research and education encourages open source education, research and development. Where the institution of research and education tenders for, or commissions the work, it will preference open source options. academics and 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 intellectual property officer.

Copyright

 * 1) The institution of research and education shall observe the Moral Rights of its academics and staff members in accordance with the provisions of the Copyright Act 1968 (Commonwealth of Australia).
 * 2) The institution of research and education 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 intellectual property being presented, expressed, published and/or distributed through its platforms, such as websites, courses, buildings and other support infrastructure, trademark or branding. academics and staff, students and partners wishing to apply protective restrictions beyond this default, should mark their work accordingly, and notify the intellectual property officer.
 * 3) The institution of research and education prefers the use of third party work that carries a copyright license that is consistent with the default position of the institution. The institution of research and education pays annual royalties for academics and staff, students and partners who copy and distribute third party works that carry more restrictive copyright licenses. As a result, the intellectual property officer needs to keep a record of the use of such third party material. academics and staff, students and partners are asked to mark restricted and reserved works accordingly, and notify the intellectual property officer of its use. This is 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 intellectual property officer should strive to maximise the extent to which existing intellectual property be relicensed Creative Commons Attribution, taking account of any undue administrative burden this may cause. academics and staff, students and partners are supported by the intellectual property officer in requesting that restricted intellectual property be relicensed Creative Commons Attribution on application. Negotiation with the third parties will be required to ensure release under Creative Commons Attribution for intellectual property which is not owned by the institution of research and education, or is shared with a third party. New contracts or agreements with a third party should endeavour to include a clause clearly stating the institution of research and education's obligation to publish relevant data and that this be under a Creative Commons Attribution licence.
 * 5) Any decision to withhold the release of intellectual property, 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 intellectual property officer and consistent with the Australian Government’s FOI policy, noting that:
 * 6) In the case of structured data, the institution of research and education and involved parties must exhaust options to protect privacy and confidentiality before seeking an exemption
 * 7) 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 institution of research and education.
 * 8) The institution of research and education 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.
 * 9) Each year the intellectual property officer, 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 intellectual property.
 * 10) The institution of research and education should use the common methodology to report its performance in the release of intellectual property in its annual reports, commencing from the first anniversary of the establishment of this policy.
 * 11) The intellectual property officer should annually publish a report outlining the contribution of the institution of research and education 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.
 * 12) Following institution of research and education acceptance of the initial ‘Value of intellectual property Report’, the intellectual property officer should consider the development of a ‘lite’ version of the common methodology for use by all individuals, disciplines, faculties and work groups.

Patenting
The institution of research and education can assist academics and staff, students or partners in researching and registering a patent through the intellectual property officer. At the discretion of the intellectual property officer, this service can sometimes involve contractual negotiations, where the institution of research and education may wish to take an interest in the intellectual property being patented, or charge a fee for service. In such cases, the intellectual property officer would be involved on the institution's behalf in:
 * Registering a patent
 * Protecting a patent
 * Collecting royalties on a patent

Trademark and/or brand
The institution of research and education can assist academics and staff, students or partners in registering a trademark, through the intellectual property officer. At the discretion of the intellectual property officer, this service can sometimes involve contractual negotiations, where the institution of research and education may wish to take an interest in the intellectual property being registered, or charge a fee for service.

Commercialisation
The institution of research and education can assist academics and staff, students or partners to commercialise their intellectual property through the intellectual property officer. At the discretion of the intellectual property officer, this service can sometimes involve contractual negotiations, where the institution of research and education may wish to take a commercial interest in the intellectual property, or charge a fee for service.

Where the institution of research and education negotiates a contracted interest in the commercial exploitation of intellectual property created by academics and staff, students or partners, the institution of research and education 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 intellectual property.
 * 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 intellectual property.

After deducting costs of protecting, marketing and administering the intellectual property, 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 intellectual property officer 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 intellectual property, 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 intellectual property officer of their decision. An agreement reached by the University with a third party might include assigning the rights to the intellectual property to the third party in return for an up-front payment or for the payment of royalties or for both.

Table A

Using alternatives
The institution of research and education respects the wishes of academics and staff, students and partners should anyone wish to refer to an alternative means to knowledge management and dissemination. The intellectual property officer will seek to understand that alternative and offer advice on how the institution of research and education can accommodate and support that alternative.

Protecting and defending intellectual property
The institution of research and education protects and defends its intellectual property through the Intellectual Property Officer. The intellectual property officer can assist academics and staff, students or partners in protecting and defending their intellectual property. At the discretion of the intellectual property officer, this service can sometimes involve contractual negotiations, where the institution of research and education may wish charge a fee for service.

Dispute resolution
Should a dispute arise between academics and staff, students, the institution of research and education or third parties, the intellectual property officer 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 intellectual property officer must appoint a mediator with professional expertise in intellectual property 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 intellectual property officer 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 intellectual property officer 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 intellectual property 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 academics and staff member consider that just and fair procedures have not been followed they may seek redress through the academics and staff grievance procedures or through the institution of research and education moderator, as appropriate.

Mediator and arbitrator selection
In selecting a mediator or arbitrator, the intellectual property officer 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.

Annual education program
The institution of research and education will establish, annually, an intellectual property education program with the following objectives:
 * to alert academics and staff and students to their rights, responsibilities and opportunities in relation to intellectual property;
 * to alert academics and staff and students as to any changes to this policy; and
 * to generate a better understanding of intellectual property issues in general, and so contribute to the creation within the institution of research and education of a more cooperative and productive environment for learning, teaching, scholarship and research.