National principles of IP management for publicly funded research

1. Purpose of the document

To provide guidance on the ownership, promotion, dissemination, exploitation and, where appropriate, protection of Intellectual Property (IP)¹ generated through Australian Government funded research by public sector institutions.²

Intellectual Property (IP) is intangible property that attracts rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. Property protected includes:

• Literary, artistic and scientific works
• Performances of performing artists, phonograms and broadcasts
• Inventions in all fields of human endeavour
• Scientific discoveries
• Industrial designs
• Trade marks, service marks and commercial names and designations

The types of government-funded research on which this document provides guidance include: grants awarded by ARC, NHMRC, and other government research funding schemes.

The following types of research are NOT covered by this document (as they should be addressed by internal procedures and agency contracts): research conducted by government departments/agencies for their own purposes (including research conducted by publicly funded research agencies³), and research procured⁴ by government departments/agencies.

The intention of the National Principles is to ensure good management of IP arising from publicly funded research.

The national principles take into account the need to encourage a culture of collaboration within the research sector and between researchers and industry; and to allow for more effective dissemination of new technologies, processes and ideas, especially to small and medium sized enterprises.

Good intellectual property management will foster the most beneficial use of Australian research and development to secure value for industries, government, researchers and the community.

2. Principles and policies

1. The Australian Code for the Responsible Conduct of Research 2018⁵ establishes a framework for responsible research conduct.
2. Australian research institutions will make every reasonable effort to gain benefit for Australia from IP. This may involve for example protection of the IP or making the IP publicly available in a timely manner.
3. Ownership and the associated rights of all IP generated as a result of Australian Government competitively funded research will initially be vested in the research institutions receiving and administering the grants as a way of recognising the inventive contribution made by the research institutions. IP generated as a result of collaborative endeavours between research institutions will vest as agreed between those institutions. The ARC and NHMRC do not wish to hold a stake in direct ownership of IP nor do they intend to benefit directly from commercial outcomes of the research funded through their financial support.
4. Research institutions must have policies⁶ relating to the ownership and availability for exploitation of IP generated as a result of Australian Government competitive funding. These policies will foster the most valuable use of this IP by industry and commercial ventures, governments, and the research sector by:
   1. Making the IP openly accessible through licensing and accessibility arrangements which allow for its use and re‐use, including potentially for commercial exploitation; or
   2. Protecting the IP through licensing and accessibility arrangements which provide exclusive opportunities to undertake commercial exploitation.
5. These policies must:
   1. Be approved by the institution’s governing body; 
   2. Ensure that there is clean and clear ownership of IP so as to maximise its chance of promotion, dissemination and exploitation, including exclusive arrangements for commercial exploitation, where appropriate;
   3. Make clear to all staff their responsibilities in relation to IP management including, where appropriate, the maintenance of research records (including e-lab books where possible, and field notebooks) and the handling of research results prior to promoting and disseminating the IP or obtaining IP protection;
   4. Provide means to help researchers identify IP that should be protected and/or commercialised, or IP that could benefit innovation/the economy of Australia by being made freely available⁷;
   5. Take note of the rights and needs of all stakeholders involved in the research supported by public funds;
   6. Provide for agreements to be made with employees and grant holders on ownership and/or associated rights of IP and keep records of those agreements;
   7. Define the ways in which benefits from the development and exploitation of the IP will be allocated; 
   8. Uphold the academic requirement to publish; 
   9. Take into account the different circumstances for ownership of IP generated by students during their course of study, research and training;
   10. Provide for appropriate acknowledgement of Aboriginal and Torres Strait Islander peoples as the Traditional Owners of their knowledge and culture, and encourage consent and consultation where IP uses that knowledge or culture, or impinges, or potentially impinges, on the cultural, spiritual or other aspects of the identity of Aboriginal and Torres Strait Islander peoples^{8, 9, 10, 11, 12, 13}; 
   11. Provide guidance in relation to potential conflicts concerning IP management, ownership, promotion, dissemination, exploitation and, where appropriate, protection of IP;
   12. Provide guidance on the licensing of copyright, in particular, the criteria for publishing under the terms of open access licences¹⁴
   13. Encourage deposition of data arising from a project in an appropriate publicly accessible discipline and/or institutional repository.
6. For Australia to reap the benefits of the IP, research institutions in receipt of research funding from the Australian Government must assist in the management of IP by providing:
   1. Assistance to researchers in fulfilling their obligations and responsibilities¹⁵ as well as rewarding and encouraging their participation in any subsequent exploitation process;
   2. Support for researchers so that they can recognise when their discoveries may provide benefit through promotion and open dissemination or when they may have potential commercial or other public value;
   3. Advice to the creators of the IP on the options available for either commercialising the IP, or making the IP freely available;
   4. Regular reviews of IP development and associated commercial activities and outcomes arising from publicly funded research;
   5. Systems to:
      1. Identify where data, including datasets and databases, generated by Australian Government funded research, constitutes IP;
      2. Support the management of the data from which the IP was derived—including data which constitutes intellectual property and data which does not constitute intellectual property—in order to maximise the benefits from the research, including:
         1. the documentation and safe storage for future use;
         2. protecting information held on ICT systems through the development and implementation of robust cyber security strategies¹⁶;
   6. Systems to record, manage and report on the IP held by that institution;
   7. Guidance to researchers in assessing existing IP in the field that is likely to affect their research.

3. Accountability

Research institutions in receipt of public funds for the purpose of conducting research must, if requested, assist in Government reporting activities to understand and document the IP arising from publicly funded research.

Footnotes

¹The Australian Government Intellectual Property Manual

²A public sector institution is one that is funded by, or majority funded by, government including universities, research institutes and hospitals

³Publicly funded research agencies (PFRAs) are Commonwealth research agencies that are subject to the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The Intellectual Property Principles for Australian Government Entities (‘the Statement of IP Principles’) provides a policy for the management of IP by Commonwealth non-corporate entities covered by the PGPA Act. Entities were individually responsible for implementing the Statement of IP Principles by 1 July 2008

⁴Under the Commonwealth Procurement Rules 2020 (Paragraphs 2.7-2.9), procurement is the process of acquiring goods and services. It begins when a need has been identified and a decision has been made on the procurement requirement. Procurement continues through the processes of risk assessment, seeking and evaluating alternative solutions, and the awarding and reporting of a contract. In addition to the acquisition of goods and services by a relevant entity for its own use, procurement includes the acquisition of goods and services on behalf of another relevant entity or a third party.

Procurement does not include:

1. grants (whether in the form of a contract, conditional gift or deed) [as defined in the Commonwealth Grants Rules and Guidelines];
2. investments (or divestments);
3. sales by tender;
4. loans;
5. procurement of goods and services for resale or procurement of goods and services used in the production of goods for resale;
6. any property right not acquired through the expenditure of relevant money (for example, a right to pursue a legal claim for negligence);
7. statutory appointments;
8. appointments made by a Minister using the executive power (for example, the appointment of a person to an advisory board);
9. the engagement of employees, such as under the Public Service Act 1999, the Parliamentary Services Act 1999, a relevant entity’s enabling legislation or the common law concept of employment; or
10. arrangements between non-corporate Commonwealth entities where no other suppliers were approached.

Following the awarding of the contract, the delivery of and payment for the goods and services and, where relevant, the ongoing management of the contract and consideration of disposal of goods, are important elements in achieving the objectives of the procurement.

⁵Australian Code for the Responsible Conduct of Research 2018. National Health and Medical Research Council, Australian Research Council and Universities Australia Commonwealth of Australia, Canberra

⁶These policies should reflect and be consistent with the principles and responsibilities set out in the Australian Code for the Responsible Conduct of Research 2018

⁷Noting that some funding programs already have explicit IP requirements.

⁸Walter M, Lovett R, Bodkin-Andrews G and Lee V, Indigenous Data Sovereignty Communique, Indigenous Data Sovereignty Summit, Canberra, 20 June 2018

⁹T Kukutai & J Taylor (eds.), Indigenous data sovereignty: Toward an agenda, Canberra, ANU Press

¹⁰National Statement on Ethical Conduct in Human Research 2007 (updated 2018) (“the National Statement”), with particular reference to Chapter 2.2 “General requirements for consent” and Chapter 3.1 “The elements of research: Element 4: Collection, Use and Management of Data and Information”

¹¹Ethical conduct in research with Aboriginal and Torres Strait Islander Peoples and communities: Guidelines for researchers and stakeholders 2018

¹²Keeping research on track II 2018

¹³AIATSIS Code of Ethics for Aboriginal and Torres Strait Islander Research 2020

¹⁴Note that not all Creative Commons licenses give full rights

¹⁵For example, the Australian Code for the Responsible Conduct of Research 2018

¹⁶Guidelines to counter foreign interference in the Australian University sector, University Foreign Interference Taskforce, November 2019 (modified November 2021)

Revised 17 November 2021