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Statement of Intellectual Property Principles for Australian Government Agencies

The Intellectual Property Principles for Australian Government Agencies (‘Statement of IP Principles’) provides a framework for effective management of intellectual property (‘IP’) by Australian Government agencies. It covers a range of issues relevant to effective management of IP, including procurement, record keeping, industry development, broader innovation policy and public access.

The Statement of IP Principles has been endorsed as Government policy for  all Australian Government agencies subject to the Financial Management and Accountability Act 1997 (‘FMA Act’). The Government has also endorsed the Statement of IP Principles as an authorised Commonwealth policy that interacts with procurement for the purpose of regulation 9 of the Financial Management and Accountability Regulations 1997. This means that although the Statement of IP Principles are not referred to in the Commonwealth Procurement Guidelines, they are now part of the procurement policy framework. 

The Statement of IP Principles does not formally extend to bodies covered by the Commonwealth Authorities and Companies Act 1997.

The Statement of IP Principles acknowledges the diversity of the functions, circumstances and requirements of agencies across the Australian Government and provides agencies with flexibility in its implementation. Agencies are encouraged to implement the Statement of IP Principles in accordance with their own particular needs and objectives.

Guidance and advice is available to agencies in the form of the Australian Government Intellectual Property Manual. All FMA Act agencies have previously been provided with an electronic copy. The manual is presently being updated as a result of the Government’s responses to the Gershon ICT Review and the Government 2.0 Taskforce’s report to Government. The revised publication will be available online at www.ag.gov.au in the near future.

Gershon ICT Review

On 24 November 2008, the Government announced its decision to implement the recommendations of Sir Peter Gershon’s Review of the Australian Government’s Use of Information and Communication Technology (‘the ICT Review’). The ICT Review indicated that ICT vendors considered that Government agencies were adopting a default position of Commonwealth ownership of intellectual property (‘IP’) rather than complying with the intent of the Statement of IP Principles which encourages flexibility.

The Government has amended its IP policy in line with recommendation 5.6.3. The aim of the new policy is to encourage ICT suppliers, particularly small and medium enterprises, to contract with Government agencies, encourage commercialisation of IP by the Australian ICT sector, and foster innovation.

The revised Statement of IP Principles includes principle 8(a) which provides that when an agency negotiates an ICT procurement contract, there will be a default position in favour of the ICT supplier owning the IP in the software created by the supplier under the contract. However, this is conditional on the ICT supplier granting the Commonwealth a licence to use the relevant IP in government activities. The new principle also includes a list of exceptions where it is in the public interest for the Commonwealth to own the IP in the software. Agencies subject to the FMA Act are expected to comply with new principle 8(a) in ICT procurement contract negotiations starting from 1 October 2010.

To assist agencies with implementation, model standard contract clauses have been developed which reflect the preferred default position and the licence back to the Commonwealth.  Explanatory material about the new policy and the model contract clauses is also available. This material will also be included in the updated Australian Government Intellectual Property Manual which will be released shortly.