During the public consultation of the whole of Victorian government IP Policy in June/July 2012, a number of comments were received from various sectors of the community, including:
- Research organisations
- rofessional associations
- Other jurisdictions
- Members of the public
Overall, the responses were positive and helpful. We have included on this page a selection of the feedback received, with the permission of the authors.
Many of the comments will inform the content of the IP Guidelines, the supporting document to the IP Policy, which is currently under development.
- From Professor Tom Cochrane, Deputy Vice-Chancellor, Technology, Information and Learning Support, Queensland University of Technology:
“I believe the clauses on the “management of state-owned intellectual property” and the “state commercialisation of intellectual property” are clear and fair statements of intent.
I notice that the State does not declare a means by which it would expect to give effect to the intent of “not …. commercialising intellectual property”.
The second principle under “management of State-owned intellectual property” also states the intent to grant rights “with the fewest possible restrictions”.
It has been noted that in a number of jurisdictions there is increasing use of open content licensing, in particular Creative Commons licensing to give effect to similar intentions.
A related issue is the extent of divergence among different jurisdictions in Australia, including State Governments, in the nature and kind of open content licensing used to give force to the intent to grant rights to IP with the “fewest possible restrictions”. One example is confusion about whether to apply the “NC” clause in Creative Commons licences.
I believe it is important to seek to harmonise approaches to intellectual property generated by Government, and it will be increasingly important to harmonise principles relating to rights in data.
Accordingly, I think the intent and principles as currently drafted are in the right direction, but would be interested to understand further how the guidelines and operational tools will operate and the extent to which their deployment will occur in a way that harmonises with similar intent and principles by other State Governments and the Commonwealth, as well as statutory authorities.
Thanks for the opportunity to comment.”
- From Professor Brian Fitzgerald, Executive Dean, Faculty of Law, Australian Catholic University:
“I note the provisions are designed to be high level and concise.
I expect that the ensuing guidelines will give further definition to the policy intent – The State grants rights to its intellectual property, as a public asset, in a manner that maximises its impact, value, accessibility and benefit consistent with the public interest – and the operation of Principles 1 and 2.
In line with national and international initiatives it is important to give clear expression in the principles or guidelines as to how the public may access and engage with government owned IP especially copyright.
The Commonwealth Statement of IP Principles deals with this issue in clause 11 – accessible at:
- From Rowena Coutts, Senior Deputy-Vice Chancellor, University of Ballarat:
“Statement 4 provides that “The State owns intellectual property created by its employees in the course of their employment.” In the light of the decision in UWA v Gray, this may not be necessarily true in all cases. Consideration should be given to adding a statement that State or agency contracts of employment should contain a clause to the effect that the State or the agency owns any IP generated in the course of the employment.
Statement 8 relates to when an agency can commercialise IP. It provides that this can be done with Ministerial approval or if the agency has an explicit statutory power to do so. It is not clear whether a general power to engage in commercial activities would be construed as an explicit power to commercialise IP. This should be clarified as often commercial activities will involve the commercialisation of IP.
Statement 10 deals with ownership of IP generated as a result of a State Government Grant. The University position should be that ownership of the IP should vest in the beneficiary of the grant, to deal with as is necessary to fulfil the conditions of the grant. The State should be given a non-exclusive, royalty free licence to use the IP. This is the position in most recent Commonwealth and State grant agreements and it works well because most grants have a head grantee who then involves various collaborators. The Grantee should be able to ensure that its collaborators can get a share of the IP. This makes contract negotiations much easier and ensures that collaborators feel that they are genuine partners in the grant project.
The concept of the State being able to obtain an assignment of IP if it is not used for the purposes of a grant (clause 10(d)), is cumbersome and probably unworkable, especially where there are multiple collaborators in a grant. There are better methods of ensuring that the grant conditions are fulfilled.”
- From Dr Shari Lofthouse, Manager, Intellectual Property and Development, Peter MacCallum Cancer Centre (excerpt):
“The Peter MacCallum Cancer (“Peter Mac”) is Australia’s only hospital solely dedicated to cancer and is a world leader in cancer treatment, research and education.
Management of State Owned Intellectual Policy.
Peter Mac agrees with the terms of this section and in particular welcomes the addition of point 2 with regard to granting intellectual property rights with the fewest possible restrictions. As an organisation, our primary intent is to use of created intellectual property to provide benefit to patients as soon as possible, and to do so we need to be able to provide adequate access to this IP to collaborators and industry partners. This may include provision of Peter Mac IP under free license by way of material transfer agreements, confidentiality agreements or collaboration agreements to enable further development. Imposition of any requirements that tighten granting of IP rights to third party would cause significant and immediate impediments to progress.
With regard to point 4 (employee-created IP is owned by organisation), it should be noted that recent court decisions (UWA v Gray) in the field of university-owned IP have necessitated a modification of our employment policies to clearly specify that the creation of new IP is clearly identified as a key item of the employee job description for research workers. …”