Purpose of the Guidelines

These Guidelines set out the Government’s approach to the ownership and commercialisation of intellectual property rights (IPR) in State Services agencies’ ICT contracts.

The Guidelines have been developed in response to requests from agencies to the State Services Commission for advice. The Government considers that these Guidelines will foster the growth, innovation, capability, and sustainability of New Zealand companies within New Zealand and internationally, and will contribute to New Zealand’s economic development.

Currently, agencies tend to assume that government ownership of new IP in contract deliverables is the preferred position, often with no consideration given to licensing the supplier to allow commercialisation of that new IP.

These Guidelines specify that only in limited circumstances should the government own and exploit the IP created under a contract. The default position is that the Supplier should own the new IP, with licences being granted to the Customer Agency and all other State Services agencies.

The Guidelines assist agencies to identify when the default position is appropriate or when it may be necessary for the Customer Agency to own the IPR but license the Supplier to commercialise the IP.

Expected benefits of this approach are:

• opportunities for sale of products internationally whilst continuing research and development within New Zealand
• increased competition between suppliers to commercialise the IPR globally
• increased ICT career opportunities for New Zealanders, and
• an attractive industry for skilled migrants to engage in.

A further benefit could also be a strengthening of the relationship between the commercial sector and government. As companies take new commercial products based on government investment in ICT into international markets, the companies should be more motivated to ensure their New Zealand Government customers are strong reference sites.

Commercialisation of IPR by the State Services can also provide benefits, such as:

• potential revenue streams
• return on investment opportunities, and
• opportunities to attract and retain a highly skilled ICT workforce within the State Services

However, exploitation of newly created IP is generally not part of their core business activities. They are generally not mandated or resourced to compete with the commercial sector to sell ICT products within government and externally – in particular to international customers. They also do not usually have a purely commercial profit motive, which is a critical element of successful commercialisation.

The Guidelines are intended to complement existing government advice with IPR implications, including:

• Cabinet Guidelines for Intellectual Property from Public Service Research Contracts, released by Ministry of Research, Science and Technology in 2004.

  IP in research contract deliverables.

• The Guide to Legal Issues in Using Open Source Software, released by the State Services Commission in May 2006.

  Recommendations covering the use of stand-alone open source applications, in-house modification or integration of open source software, using third party developers, and distributing software. These include ownership, licensing and intellectual property rights.

• Policy Framework for Government-held Information, available online.

  Principles relating to ownership of government-held information.

The Privacy Act 1993 includes principles relating to the collection, use, and disclosure of information relating to individuals.