Decision Process
Determining Ownership
Decision process and considerations for determining the ownership and commercialisation of the new IP in deliverables
At the ICT project business case formulation stage, State Services agencies should work through a decision flow process to establish which option is appropriate for their project.
The first consideration will be to identify who should own the new IPR in the deliverables under the contract. In making that decision, agencies should consider the issues represented in the decision diagram below.
| Do the contracted deliverables mainly use pre-existing IPR (which is already owned by the supplier)? | |||||||||
| Yes
The Supplier owns the IPR. |
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| No
Are there security or integrity reasons for the agency to own the IPR? |
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| Yes
The Customer Agency owns the IPR. |
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| No
Does the IPR apply to a critical government ICT system? |
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| Yes
The Customer Agency owns the IPR. |
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| No
Does the agency want the ability to enforce the IPR against infringers? |
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| Yes
The Customer Agency owns the IPR. |
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| No
Does the agency want the ability to enforce the IPR against infringers? |
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| Yes
The Customer Agency owns the IPR. |
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| No
Does the agency want a third party other than the original supplier to be able to commercialise the IPR? |
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| Yes
The Customer Agency owns the IPR. |
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| No
Does the agency intend to allow free use of the IPR on open source terms? |
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| Yes
The Customer Agency owns the IPR. |
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| No
Are there other reasons why the agency does not want the original supplier to own the IPR? |
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| Yes
The Customer Agency owns the IPR. |
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| No
The Supplier owns the IPR. |
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If the outcome of the above process is that the Customer Agency should own the IPR, the following process should be followed to assist in determining who, if anyone, should be permitted to exploit the IP:
| Are there security or integrity reasons for the agency not wanting the IPR commercialised? | |||||||||
| Yes
Supplier can't commercialise (Option One). |
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| No
Does the agency want a third party other than the original supplier to be able to commercialise the IPR? |
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| Yes
Supplier can't commercialise (Option One). |
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| No
Does the agency intend to subsequently allow free use of the IPR on open source terms? |
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| Yes
Supplier can't commercialise (Option One). |
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| No
Is there potential to commercialise, but the IP is part of a critical government ICT system, and the agency wishes to own it to avoid dependency on a supplier for knowledge or control, or for reasons of public confidence? |
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| Yes
Supplier can commercialise (Option Two). |
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| No
Does the agency wish to use the IP with other public sector agencies or provide it to overseas governments, but there is potential for the supplier to commercialise the government-owned IPR for private sector clients? |
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| Yes
Supplier can commercialise (Option Two). |
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