Statement of IP principles brings government agencies together
The Australian government has developed a Statement of IP Principles to help Australian government agencies manage their intellectual property. All agencies covered by the Financial Management and Accountability Act must implement the statement by July 1 2008.
The Australian government is a major investor in the creation and development of intellectual property through its many activities in science, health, education, public infrastructure, information technology, defence, and arts and culture. As such, the Commonwealth of Australia owns the copyright in a diverse range of materials produced under its direction and control. For example, the Commonwealth is the owner of copyright in material produced by its employees, or commissioned or first published by the Commonwealth.
The business practices and objectives of Australian government agencies are varied. Many agencies create, publish and distribute materials for the purpose of informing and educating the community. They do not necessarily attempt to control the extent to which the material is used. In contrast, other agencies have a strong commercial focus, where active management and control of intellectual property may be necessary to achieve business outcomes.
The agencies concerned are encouraged (and from July 1 2008 will be required) to develop individual IP management frameworks that reflect their own needs and objectives. The IP management frameworks will outline an agency's approach to:
- dealing with the acquisition, use, sharing, commercialization, disposal and public access to intellectual property;
- identifying and recording ownership of intellectual property (eg, in a formal IP register); and
- monitoring, protecting and preventing inappropriate use or infringement of intellectual property.
In particular, all Australian government agencies from July 1 2008 will need to:
- be mindful of opportunities for financial savings in procurement contracts (ie, proposals to spend public money including procurement of property or services) to secure only those IP rights required to meet the objectives of the procurement;
- balance the costs of managing and administering IP assets retained by agencies against the risk that some IP assets may rapidly depreciate in value;
- ensure that the costs of securing IP rights are appropriate to the efficient use of agency resources. For example, the agencies concerned will be required when entering into commercial arrangements to consider the possibility of sharing IP secured by the agency with other government agencies; and
- take care in disclosing any information regarding their intellectual property to third parties prior to its publication or commercialization. Premature disclosure may reduce the commercial value of the intellectual property. In the case of patentable subject matter or a design, the opportunity to seek a registration may be entirely lost.
Interestingly, unless commercial activities are already an integral part of an agency's objectives, commercialization of intellectual property by an agency is required to be no more than an ancillary part of its activities and should not become a core business activity. Before commercializing intellectual property, the agencies concerned will need to assess the commercial potential of the intellectual property against the potential costs and risks.
Simon Williams, Sprusons & Ferguson Lawyers, Sydney
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