Background to the Guidelines

Historical Context

Agencies have tended to consider IPR ownership from their own rather than a wider all-of-government perspective, and to adopt an unofficial default position when negotiating ICT contracts that they will own any new IP created. It has been commonly assumed that this approach is cost-effective for government as it would allow usage of the IPR by other agencies at no further cost.

Potential future commercial exploitation of the IP has not been a prime consideration as commercialisation is generally not core government business. However, by owning the IPR, agencies may be both restricting opportunities for the commercial sector and limiting incentives for innovation.

International Practice

An emerging view in other governments and amongst intellectual property lawyers is that IPR ownership by government is often unnecessary, and that an all-of-government usage licence would be sufficient, except where there are clear security or other all-of-government reasons for retaining ownership.

Other countries are recognising that making IPR arising from government-funded ICT contracts more readily available to the commercial sector can be an important economic development tool. While government is a significant customer of the commercial ICT sector, that sector is usually better placed to commercialise new IP. In other words, government is often a major player in the creation of new intellectual property, but rarely seeks to commercialise it.

A Balanced Approach

These ownership and commercialisation guidelines recognise the need to balance economic development drivers with other drivers that are also in the national interest. Just as there will be occasions where supplier ownership of newly created IPR is appropriate, there will be occasions (for example, in matters of national security) where government will want to retain full IPR ownership, regardless of the possible economic development benefits of commercial sector exploitation.

The needs of government as consumer are also recognised. Government, like any other customer, seeks to ensure that ICT infrastructure and applications developed and deployed for it will be supported and maintained to its satisfaction.

Government occasionally has concerns about the long-term viability of vendors, or concerns about how the customer-vendor relationship will change over time. These Guidelines anticipate that these concerns can generally be addressed via contractual mechanisms, such as the establishment of a code escrow arrangement.