NTEU logo

National Tertiary Education Union

Central Queensland University Branch

Back to the Branch Home Page  

Background

The policy was agreed mid-1996 substantially as presented here. The official version, which should be consulted in any dispute, has gone to the appropriate University bodies for ratification.

DRAFT (26/4/96)

CENTRAL QUEENSLAND UNIVERSITY

INTELLECTUAL PROPERTY POLICY

1. POLICY - SUMMARY

  1. For any staff member or student, ownership of copyright remains with the originator except in those cases where the originator is specifically commissioned by the University to produce a particular work or subject matter.

  2. In the case of University-commisioned teaching and administrative copyright material, the University shall have licence to exercise intellectual property rights which includes the right to adapt material. In this regard, due consideration will be afforded to the moral rights of the originator.

  3. The University asserts ownership of all other intellectual property created by a staff member in the course of their employment.

  4. Postgraduate students, prior to embarking on their program of study, may be required to grant a non-exclusive licence to the University to exercise intellectual property rights.

  5. The University has the right to reach agreements with third parties which govern the ownership and/or exploitation of Intellectual Property, thus rendering null and void provisions of and 1 and 3 above.

2. INTRODUCTION AND OBJECTIVES

Central Queensland University's Intellectual Property Policy seeks to establish a sound framework for the encouragement of invention, creative work and technology transfer. The policy sets out how the University proposes to manage intellectual property rights and issues so as to best meet its policy objectives. Those objectives are:

The University, after reaching agreement through negotiation with academic, general and student unions, reserves the right to modify or add to this policy at any time provided that any such change will only apply to works, inventions and other subject matter, in which intellectual property rights subsist, that come into being after the effective date of the change.

3. DEFINITIONS

3.1 For the purpose of this policy:

"Intellectual Property" means and includes:

(a) copyright protected under the Copyright Act 1968 in literary works (including computer programs), dramatic works, musical works, artistic works, sound recordings, cinematograph films, television and sound broadcasts and tapes and published editions as defined in the Copyright Act;

(b) circuit layouts protected under the Circuits Layout Act 1989;

(c) designs registered or registrable under the Designs Act 1906;

(d) patents registered or registrable under the Patents Act 1990;

(e) plant varieties registered or registrable under the Plant Breeder's Rights Act 1994;

(f) trade marks registered or registrable under the Trade Marks Act 1955 and trade marks or names protected at common law or under the Trade Practices Act;

(g) research results or inventions which, by mutual agreement between the University and the developer involved, are maintained as a commercial secret rather than being registered or otherwise protected by relevant legislation;

(h) information in University databases or collections, which may or may not be classed as literary works, the development and/or maintenance of which as part of their normal duties may be the responsibility of an individual or a joint activity of several individuals or Faculties/Divisions;

(i) works developed for teaching purposes, including but not restricted to study guides, laboratory manuals, TVI tapes, CAL and CML programs and other electronic courseware, radio and TV broadcasts, audiovisual materials and the like which have been developed to further the University's teaching function.

and means and includes such rights to the extent that they are added to or varied from time to time by legislation which amends or replaces, in whole or in part, any of the abovementioned Acts.

3.2 "Invention" means and includes any new and useful, or new and useful improvement of, a process, machine, product or other manufactured item or composition of matter whether or not it is patentable and whether or not it has been reduced to writing or any other form of expression and includes any related know-how and any documents, computer software or other medium in which any such invention is described or comprised.

3.3 "Staff member" means and includes all academic, research and general staff who are employees of the University, whether full-time or part-time, but does not include staff who are consultants or seconded to the University if they are not employees under contracts of service, and does not include students except if they are also employed as academic staff, in which case it will include them in that capacity alone.

3.4 "Commissioned" as in "University commissioned" or "Commissioned by the University" means generic tasks performed under an employment contract or appropriate position description, and which may be performed by any other staff member with similar qualifications and position description. "Specifically commissioned works" are individually defined tasks identified in an employment or other contract, and may be a subset of, or different from the generic tasks. The difference is that they have been specifically defined, or limited by contract.

4. OWNERSHIP

4.1 The University will not assert ownership of works developed for teaching purposes except where such materials have been produced in printed or other form by or on behalf of the University or a Faculty/Division under the University's name and/or crest, and then only to the extent that Intellectual Property exists in the work itself, or where such materials have been specifically commissioned by the University.

4.2 The University will not assert ownership of any Intellectual Property in books, articles, audiovisual materials prepared for individual use or conference presentation or other such scholarly work or subject matter generated, whether in written or other form, by staff members other than that specifically commissioned by the University; and the University authorises staff members to deal with such Intellectual Property as owners and agrees that upon request it will assign to the relevant staff member(s) any rights that it may have in that Intellectual Property.

The University reserves the right to use such works or subject matter for the purposes of its teaching and research in accordance with Intellectual Property legislation and through procedures such as those administered by the Copyright Agency Limited.

4.3 The University will not assert ownership of the Intellectual Property in artistic works created by researchers in fine art or design, unless the creation of such works has been specifically commissioned by the University. Similarly, the University will not assert ownership of the Intellectual Property in musical, dramatic or other creative works written, created or composed by researchers, unless these works have been specifically commissioned by the University.

4.4 Except as otherwise agreed in writing or stated in this policy, the University asserts ownership of other Intellectual Property created by staff members in the course of their employment. With respect to students, it lays no claim for undergraduate students. Postgraduate students may be asked, prior to embarking on their course of study, to grant a non-exclusive license substantially in the form of that contained in Appendix 1 to the University in respect of specified Intellectual Property which may be generated by them in the course of their studies.

4.5 Despite any contrary provision in this policy, all contracts and arrangements existing at the time of the adoption of this policy which are between the University and governments, corporations and other external organisations, and which relate to the University's Intellectual Property, shall remain in full force and effect. If the University's Intellectual Property arises out of or in connection with a project that is the subject of an agreement with a third person which provides for the ownership of such Intellectual Property and the University has agreed in writing to the provisions of that Agreement, then, despite any contrary provision in this policy, the provisions of that agreement will govern ownership of all rights in the intellectual property.

5. EXPLOITATION OF INTELLECTUAL PROPERTY: PROCEDURES IN CASE OF INVENTIONS

5.1 Where a staff member, creates University Intellectual Property, other than that to which the University will not claim ownership as the result of the operation of Clauses 4.1 and 4.3, which Intellectual Property is, in the staff member's opinion capable of commercial exploitation, the staff member will report its existence to the Pro-Vice-Chancellor (Research and External Development) through the appropriate Dean or Head of Division. Students will follow procedures outlined in any applicable assignment or licensing agreement that they have entered into with the University.

5.2 Following consultation with the staff member and the Dean or Head of Division, the Pro-Vice-Chancellor (Research and External Development) shall determine whether the University wishes to become involved in the exploitation of any University Intellectual Property which is reported under Clause 5.1 or is otherwise brought to their notice.

5.3 The University shall decide within eight weeks of the initial contact by the staff member(s) whether it wishes to be associated with the exploitation of the University Intellectual Property. If the University has not given notice within that period that it wishes to be involved in the exploitation of the relevant University Intellectual Property then it will be deemed to have decided not to be. If the University does not wish to be involved in the exploitation of any particular University Intellectual Property then:

(a) the staff member shall be free to protect and exploit the Intellectual Property or otherwise at the staff members discretion, subject to the interests of any third parties; and

(b) if the staff member so requests, the relevant University Intellectual Property Rights will be promptly assigned to the staff member, in return for the University receiving a mutually agreed percentage of future income, in order to enable the researcher to take such action as the staff member sees fit.

5.4 Where the University decides to be involved in the commercial exploitation of the University Intellectual Property in any Invention it will consult with the staff member(s) involved in the creation of the Invention before determining, as it sees fit, the appropriate action to be taken. This may include, without limitation, one or more of the following:

(i) the filing of Patent application in the name of the University with the researcher as named inventor;

(ii) the identification of potential licensees;

(iii) the assignment of the rights to a third party such as the Australian Technology Group;

(iv) requesting the assistance and advice of CQUest on patenting, funding and other aspects of the commercialisation of Intellectual Property in which CQUest has specialist expertise;

(v) the formation of a limited liability company to exploit the technology;

and shall address any need for confidentiality by the University and/or the staff member(s). In determining the appropriate course of action for the commercial exploitation of an Invention, the Pro-Vice-Chancellor (Research and External Development) or his nominee may consult, on a confidential basis, with appropriate experts and advisers.

5.5 In any case where the University is the owner of any Intellectual Property in an Invention and wishes to participate in the commercial exploitation of that Invention, then any staff member involved in the Invention, whether as inventor, an owner, or otherwise, agrees that the University will be deemed to have an irrevocable authority to act on the staff member's account and to execute such documents as the University deems necessary for the purposes of the commercial exploitation of that Invention consistent with the objectives of this policy.

5.6 Where the University decides to be involved in the exploitation of University Intellectual Property in any Invention, the staff member(s) shall provide all reasonable assistance in the exploitation process by, for example, providing information promptly on request, attending meetings with potential licensees and advising on further development.

5.7 Net income received by the University as a result of the exploitation of University Intellectual Property in any Invention shall be distributed as follows:

Staff Member 50%

Faculty/Division 25%

University 25%

The Pro-Vice-Chancellor (Research and External Development) will determine modes of payment for the above; any direct payments to researchers will be subject to PAYE tax. Only those researchers involved in the creation of University Intellectual Property in an Invention and who comply with their obligations under this policy will be entitled to any distribution of University income pursuant to this Clause. Net income means sale, royalty, licensing and other income received from the commercial exploitation of University Intellectual Property in any Invention less legal and other fees and expenses in establishing and protecting the Intellectual Property and in negotiating and concluding any licensing or other agreements relating to the Intellectual Property. Where more than one staff member is involved the distribution of their share of the income between themselves will be a matter for them to determine save that where there is failure to agree then income shall be distributed in proportions to be determined by the Pro-Vice-Chancellor (Research and External Development).

5.8 The revenue sharing arrangements in Clause 5.7 above shall not be available to staff members who are specifically contractually obliged to create and develop University Intellectual Property or Inventions so far as that Intellectual Property or those Inventions are concerned. Any payments to staff members in this category, other than payments governed by their engagements contracts, shall be the subject of ad hoc determination by the Pro-Vice-Chancellor (Research and External Development) and the appropriate Dean or Head of Department at the time of receipt of income.

5.9 The sole authorised signatories on behalf of the University on matters relating to Intellectual Property shall be the Vice-Chancellor or the Pro-Vice-Chancellor (Research and External Development). Agreements executed under seal should be subject to the University's usual procedures.

6. MORAL RIGHTS

The University recognises that the fair attribution of authorship and the recognition that a work should not be altered so as to harm the reputation of the author, are part of established academic culture.

6.1 Where the work of another is used, in whole or in part, the use shall be appropriately acknowledged.

6.2 In the case of works developed for teaching purposes, the University will establish, by agreement between the author(s)/developer(s) and the appropriate supervisor or publication unit, a "use by date" after which the material will no longer be used without, at the discretion of the original author(s)/developer(s), major revision or specific permission of the original author(s)/developer(s). Either the original author(s)/developer(s) or the University may unilaterally decide to withdraw the material from use after the used by date.

6.3 In the event the original author(s)/developer(s) (or their estate or executor) cannot be located at the end of the use by date, the University will automatically withdraw the material from use.

6.4 If the work of another is revised or altered in any way, it shall not be altered in such a way as to harm the academic or personal reputation of the original author(s)/developer(s).

What may cause that harm shall be assessed according to what is reasonable in the circumstances. The determination of what constitutes reasonableness "in the circumstances" involves both common sense and an acknowledgment of the written or unwritten codes of practice existing in our academic culture.

7. DISPUTES

The University wishes to resolve disputes arising with respect to matters covered by its Intellectual Property Policy quickly but fairly and, wherever possible, to do so without resort to litigation or other public dispute resolution procedures. The intent is to reduce the strains that such disputes and their resolution place on the parties so as to affect the work and relationship of those involved as little as possible.

7.1 If any dispute arises between a staff member or student or other individual covered by this policy and the University with respect to the application of this policy then it shall be resolved under the Central Queensland University Dispute Resolution Process.

7.2 If any dispute arises between an ex-staff member or ex-student and the University with respect to the application of this policy then it shall be resolved as under 7.3.

7.3 If a dispute arises between the University and a staff member, ex-staff member, student, or ex-student as to ownership of Intellectual Property or obligations with respect to such Intellectual Property then the University will attempt to agree with the other party/parties to first endeavour to settle the dispute by mediation.

If the dispute is not settled within a reasonable time by mediation, the University will submit the dispute to expedited arbitration administered by, and in accordance with the Arbitration Rules of, the Australian Commercial Disputes Centre (ACDC). Failing agreement as to the arbitrator ACDC would be given power to appoint a person who is not the same person as the mediator.

Any mediation or arbitration should be held in conference in Rockhampton or other centre where a Central Queensland University campus is located at the convenience of the individual(s) involved.

Nothing in this procedure removes the right of the staff member, ex-staff member, student, or ex-student to seek other recourse available under law.

Epilogue

Central Queensland University acknowledges the University of Newcastle Intellectual Property Policy as the inspiration, with permission, of extensive portions of this document.

APPENDIX 1

POSTGRADUATE LICENCE

The following is subject to the terms of any agreement that a student may be required to observe where funding is provided by a third party:

[Student] hereby grants to the University a non-exclusive, royalty-free, irrevocable and perpetual licence:

(i) to use for teaching and research purposes; and

(ii) subject to the payment of the royalty or fee referred to below, to commercially exploit whether by licence or otherwise;

any Intellectual Property (as defined by the University Intellectual Property Policy) the student creates or invents or otherwise acquires rights to in the course of the students postgraduate study and research with the University.

If the student creates or invents or otherwise acquires Intellectual Property in the course or the students postgraduate study and research with the University which is in the students opinion, capable of commercial exploitation, then the student will report its existence to the students Dean and to the Pro-Vice-Chancellor (Research and External Development).

If the University wishes to commercially exploit the Intellectual Property then it will notify the student and the student will be recompensed on the same basis as University academic staff would be under the University Intellectual Property Policy, as amended from time to time, if they had an entitlement to remuneration for the same Intellectual Property under the provisions of that policy.

The licence shall not extend to any Intellectual Property the student may own or acquire rights to in respect of:

(a) books, articles, theses, dissertations and other written works created in the course of the student's study or research and not reasonably considered to possess commercial potential other than where those specific programs and related materials were created at the express request of the University;

(b) computer programs (in any code) and related materials which have been created in the course of the student's study or research and not reasonably considered to possess commercial potential other than where those specific programs and related materials were created at the express request of the University;

(c) artistic works created in the course of the student's research or study other than where those specific works have been created upon the express request of the University;

(d) musical or dramatic works other than those specific works which have been created at the express request of the University or which are published, performed, broadcast, funded or otherwise supported by University resources.

The student acknowledges that the University reserves the right, prior to the student participating in any research project in which University staff are also involved or in which University equipment, facilities or resources will be used, or as a condition of the student's continued participation in any such project, to require the student to assign any Intellectual Property arising or subsisting in or in respect of any invention, work or other material that the student may in future author, invent or create in the course of working on that project as a condition of the student's participation or continued participation in it.

Back to the Branch Home Page

The information on this page is provided and maintained by the Central Queensland University Branch of the National Tertiary Education Industry Union (NTEU/QLD CQU Branch) and is not necessarily Central Queensland University Policy

Page design, not content, last updated: 19/9/00 by Lynn Zelmer