Intellectual property policy

The National Museum of Australia (the Museum) is a major cultural institution charged with researching, collecting, preserving and exhibiting historical material of the Australian nation. The Museum focuses on the three interrelated areas of Aboriginal and Torres Strait Islander history and culture, Australia’s history and society since European settlement in 1788 and the interaction of people with the environment.

Established in 1980, the Museum is a publicly funded institution governed as a statutory authority in the Commonwealth Arts portfolio. The Museum’s building on Acton Peninsula, Canberra opened in March 2001.

3.1 Description

This policy sets out the rules applying to ownership, management, use, protection and disposal of rights to intellectual property (IP) developed or used wholly or partially as a result of activities performed for or on behalf of the Museum.

This policy together with any IP procedures developed under it form the Museum’s IP management tools and have been created to achieve the objectives outlined in paragraph 3.2. Therefore, this policy document should be read in conjunction with the IP procedures where appropriate.

3.2 Objectives

3.2.1 The Attorney-General’s Statement of Intellectual Property Principles for Australian Government Agencies issued in May 2007 (IP Principles) provides that Australian Government agencies are responsible for managing IP in their control or custody in an effective, efficient and ethical manner,1 for the benefit of the Australian community as a whole.

3.2.2 In dealing with IP, the Museum aims to:

a) ensure it is not prevented from using and providing access to collection items in which IP subsists for Museum purposes

b) facilitate access to collection items by the public, in accordance with its functions under the National Museum of Australia Act 1980 and within the scope of relevant copyright laws and licences

c) foster and recognise research, scholarship and innovation capacity

d) protect the Museum’s IP such as the Museum’s brands

e) avoid disputes that may damage the Museum’s reputation and give rise to legal liability.

3.2.3 This policy aims to assist the Museum to achieve these objectives in a manner which complies with the IP Principles.

3.3 Rationale

The Museum is governed by the National Museum of Australia Act 1980. The Museum is also subject to the Commonwealth Authorities and Companies Act 1997, and the Public Service Act 1999. The Museum is required to comply with the Commonwealth Procurement Guidelines in accordance with the Commonwealth Authorities and Companies Regulations 1997.

The IP Principles are expressed to provide a good practice guide for the management of IP by agencies that are subject to Commonwealth Authorities and Companies Act 1997.

4.1 Precedence

4.1.1 This policy (and any IP procedures developed under it) will take precedence over all other related policies in the event of inconsistency between such policies and this policy.

4.1.2 All contracts and arrangements existing at the time of the adoption of this policy between the Museum and other individuals or organisations, which relate to intellectual property and in which the Museum has an interest, will remain in full force and effect, including those where the ownership of developed intellectual property is vested in a third party.

4.2 Scope

This policy applies to:

4.2.1 IP that the Museum owns or licenses that:

a) is recorded in, or otherwise subsists in materials recorded in, the Museum’s collection database

b) is published by the Museum (including through National Museum of Australia Press or online publishing)

c) is incorporated in or a component of commercial off-the-shelf (COTS) or non-COTS software used by the Museum

d) forms part of exhibition or program materials

e) is part of the Museum’s library collection

f) is used to promote the Museum, its programs or activities

unless such IP is assessed as giving rise to an insignificant risk that the Museum may not achieve the objectives specified in section 3.2.2, and/or is valued at less than $2,000.00.

4.2.2 All employees and contractor personnel of the Museum.

4.2.3 Visiting research fellows, students, donors, vendors, lenders, borrowers and any other third-party contractors to the extent that this policy is invoked to apply to them.

4.3 Administration

4.3.1 The Museum has designated IP managers to administer processes related to intellectual property within the Museum.

4.3.2 The IP managers are responsible for implementation of this policy and will monitor the performance of actions and initiatives against the Implementation Plan.

5.1 Awareness of IP

5.1.1 Business unit managers will be responsible for:

a) establishing and maintaining IP awareness initiatives that are relevant for their business units, in accordance with the implementation plan

b) liaising with other business units within the Museum to ensure that IP awareness initiatives are established and maintained effectively and efficiently across all business units within the Museum.

5.1.2 The resourcing applied to IP awareness initiatives will take account of, and be balanced with, the benefits, risks and valuation of the IP held by the Museum.

5.2 Creation of IP

5.2.1 Identification of IP

The Museum will, wherever possible, identify any Material IP that may have been created within the Museum arising from the performance of its functions and activities.

5.2.2 Recognition and acknowledgement

The Museum will encourage the creation of IP by recognising and/or, where appropriate, acknowledging its personnel for their contribution to any innovation and creation of Material IP.

5.2.3 Notification of IP

a) All Material IP created, acquired or disposed of by the Museum should be notified to the relevant IP Manager(s) as soon as practically possible.

b) All Museum personnel should provide to the relevant IP Manager(s) sufficient information as is reasonably necessary to enable the Museum to manage the IP that it holds.

5.2.4 Recording of IP

All Material IP will be recorded by the Museum in a manner that best enables the Museum to manage the material risks to its operations and efficiently and effectively manage its resources.

5.2.5 Management of systems to identify and record Material IP

The IP Managers are responsible for establishing systems to identify and record Material IP including, where appropriate, one or more IP Registers. Details to be recorded will include:

a) the ownership of IP

b) rights associated with the ownership and use of IP

c) restrictions on the Museum or other parties in relation to the use of IP

d) costs associated with the use of IP.

5.2.6 Obligations of Museum personnel

Museum employees are required to:

a) keep records of Material IP in relation to the activities of their business units (including information recorded on IP Registers, where applicable) accurate and up-to-date

b) retain copies of all documents associated with the creation, use, management and handling of Material IP in accordance with the Museum’s Recordkeeping Policy.

5.3 Assessing and valuing IP

5.3.1 Review of IP

The Museum will periodically review the IP that it holds to assess which of that IP is ‘Material IP’ as defined in this policy at section 6.

5.3.2 Valuation of IP

a) The Museum will value its IP if it is appropriate to do so for internal risk and asset management purposes.

b) Valuation of IP should not be used as the sole or principal justification for commercialisation decisions concerning its IP.

c) Justifications for commercialisation of IP should include reference to the public benefit and utility of that IP.

d) The method for valuing IP held by the Museum must be in accordance with the applicable accounting standards or otherwise consistent with the purposes for which the IP is being valued.

5.4 Ownership of IP created by the Museum

5.4.1 IP created by employees of Museum

IP created by an employee of the Museum in the course of his or her employment or otherwise created under the direction or control of the Museum should be owned by the Museum.

5.4.2 IP created by contractor personnel

IP created by contractor personnel in the course of his or her engagement or otherwise created under the direction or control of the Museum should be owned by the Museum.

5.4.3 IP created by visiting personnel

IP created by visiting personnel in the course of exercising his or her ‘visitor privilege’ or otherwise created under the direction or control of the Museum should be owned by the Museum.

5.4.4 Ownership of IP exceptions

Exceptions to 5.4.1–5.4.3 may be made provided that such an arrangement complies with any applicable IP procedures or is otherwise approved in writing by the Director.

5.4.5 Recognition and acknowledgement

In dealing with IP created by employees, contractor personnel or visiting personnel, the Museum will consider appropriate forms of acknowledgement and recognition for the creation of Material IP under its direction or control, in accordance with any applicable IP procedures.

5.5 Acquisition of IP from outside the Museum

5.5.1 Flexibility and needs analysis

a) The Museum will be flexible in determining whether the Museum should own IP created by another person or organisation.

b) The Museum will consider its needs before determining the nature and scope of rights to IP.

c) Subject to paragraphs 5.5.1(a), 5.5.1(b) and section 5.5.2, and having regard to the importance of securing adequate rights to enable the Museum to perform its functions the Museum will, as a starting point in dealings with creators of IP, seek ownership of the IP.

d) The Museum will identify and address its IP requirements as part of the procurement or acquisition process.

5.5.2 Factors to consider

a) In the course of assessing its requirements to own or license IP, the Museum will take into account:

i. the IP procedures, if any, applicable to the creator or category of Material IP in a particular case

ii. the risks to the Museum if:

• it did not own the IP or
• it is unable to identify the scope of rights it may require in the future

iii. the costs to the Museum of owning the IP compared to licensing that IP

iv. whether it is within the Museum’s core functions to control the IP.

5.6 Protection of IP

5.6.1 The Museum should seek to formally protect its own IP if:

a) such protection will:

i. better enable the Museum to manage the material risks to its operations

ii. not involve costs that outweigh the benefits to the Museum and/or

iii. enable the Museum to achieve its IP related objectives

b) the Museum has the resources to manage that protected IP on an ongoing basis including any enforcement of that IP

c) the Museum has obtained appropriate expert advice concerning the prospects of successfully protecting that IP.

5.7 Use of another person’s IP

5.7.1 General

a) The Museum’s use of IP owned by another person:

i. must be consistent with the legal rights granted or otherwise available to the Museum

ii. must be undertaken in accordance with any relevant IP procedures

iii. must be undertaken in an effective, efficient and ethical manner

iv. should be consistent with the needs analysis undertaken by the Museum including using the IP to carry out its functions including but not limited to managing its collection, exhibitions and programs

v. should be consistent with any relevant industry standards or policies in relation to the use of IP

vi. should be undertaken in a manner that respects the cultural traditions of Indigenous communities, where applicable

vii. should respect the creator’s moral rights in a manner that is consistent with the Copyright Act 1968

viii. should be supported by appropriate documentation including contractual documentation.

5.7.2 Fees payable to the Museum

The fees or costs paid by the Museum to use another person’s IP should:

a) represent value for money

b) be determined, where appropriate, in accordance with the Museum’s Procurement policy and any applicable licensing agreements.

5.8 Use of the Museum’s IP

5.8.1 Permission

The Museum will permit other persons to use the Museum’s IP if such use:

a) will be consistent with the performance of the Museum’s functions

b) facilitates the achievement of the Museum’s IP-related objectives and

c) respects the creator’s moral rights in a manner that is consistent with the Copyright Act 1968.

5.8.2 Supporting documentation

The use of the Museum’s IP by another person must be supported by appropriate documentation including contractual documentation and be recorded in accordance with this policy (including as part of an IP Register where applicable).

5.8.3 Fee for use

Subject to section 5.11, the Museum will determine on a case-by-case basis whether to charge a fee for the use of its own IP.

5.8.4 Sharing with the public

a) Encouraging public use

The Museum will encourage public use of and easy access to copyright material that has been published for the purpose of:

i. informing and advising the public of the Museum’s activities and collection

ii. facilitating access to the Museum’s collection or

iii. delivering education and outreach programs in accordance with the Museum’s functions.

b) Basis for permission for public use

i. Permission for public use and re-use of such material should generally be given on a non-exclusive basis, through Creative Commons or other open source licences, where appropriate.

ii. Exclusive licence to use such materials should only be given in exceptional circumstances, and with the written approval of the relevant IP Manager(s).

5.8.5 Sharing with other government agencies

a) The Museum will consider opportunities to share IP for which it is responsible with other agencies.

b) If the Museum procures IP on the basis that it may be shared with other Australian Government agencies, then the Museum should make this clear to potential suppliers in the procurement process.

5.9 Record of rights and obligations

The Museum will record the rights and obligations of rights in Material IP that it acquires and grants.

5.10 Museum brand

The use of the Museum’s brand (including the logo) by the Museum and any other person with whom the Museum deals must be in accordance with the Museum’s style guide and any applicable IP Procedures. Approval from the relevant IP Manager must be obtained prior to any use of the Museum’s brand that does not comply with these requirements.

5.11 Commercialisation of IP

5.11.1 General

The Museum will, from time to time in the performance of its functions, seek revenue in return for the use of IP held by the Museum. This may include, but not be limited to, publishing, merchandising and sponsorship activities.

5.11.2 The Museum’s approach to such activities will be consistent with the following principles:

a) the Museum will act consistently with industry and market practice applicable for a national cultural institution

b) the Museum should be responsive to opportunities for commercial use and exploitation of IP, including by the private sector

c) the Museum will conduct such activities in accordance with its Strategic Plan and Business Priorities, and any applicable IP procedures

d) the Museum will act in an accountable manner consistent with Australian Government legislation, policies and guidelines.²

5.11.3 Effect on competition

The Museum should also ensure that through commercialisation, competition is not adversely affected by:

a) abuse of any commercial advantage arising out of the Museum’s public ownership of IP and/or

b) the transfer of IP to the private sector in a way that restricts competition or allows the formation of a monopoly in respect of the relevant market.

5.11.4 Approval of commercialisation

Any decision to commercialise the Museum’s IP must comply with the applicable IP procedures, if any, or be approved in writing by the Director.

5.12 IP infringement

5.12.1 Avoiding infringement of others’ IP

The Museum will manage the risk of infringing another person’s IP by:

a) establishing and maintaining an IP awareness program

b) wherever practically possible, taking preventive steps to avoid infringing IP before:

i. implementing a new program, exhibition or activity

ii. adopting a new logo or brand

iii. procuring new goods or services or

iv. developing new software or products

c) if it becomes aware or is notified of a claim of IP infringement:

i. immediately notifying the Manager, Legal Services of the alleged IP infringement or claim

ii. managing the claim in accordance with the Commonwealth Legal Service Directions

iii. notifying Comcover

d) in consultation with the Manager, Legal Services, seeking expert legal and other professional advice where necessary.

5.12.2 Infringement of Museum IP by another person

If the Museum receives notice or becomes aware that the Museum’s IP may have been infringed it will manage such a claim by:

a) immediately notifying the Manager, Legal Services of any alleged IP infringement

b) seeking expert legal and other professional advice where necessary

c) managing the claim in accordance with the Commonwealth Legal Service Directions

d) notifying Comcover.

5.13 Disposal of Museum IP

5.13.1 When to dispose of IP

Material IP of the Museum should only be assigned or otherwise disposed of if:

a) it is no longer necessary to enable the Museum to achieve its IP-related objectives or perform its functions or

b) another person is better placed to utilise the IP and ownership by that person of the IP will not adversely affect the Museum.

5.13.2 Assessing ongoing needs

The Museum must consider any ongoing rights in the IP that it may require before disposing of that IP.

5.13.3 Recording of disposal

All disposals of Material IP owned by the Museum must be recorded in writing and the relevant IP Manager(s) must be notified.

5.13.4 Process for disposal

In disposing of IP or any records relating to it, the Museum will manage the activity in accordance with:

a) the National Museum of Australia Act 1980 and applicable Museum policies and procedures

b) the Archives Act 1983

c) any contractual restrictions relating to the relevant IP

d) other legal requirements.

5.13.5 Approval of disposal

Any disposal of Material IP owned by the Museum must be approved in accordance with the Museum’s assets disposal policies and procedures.

Confidential information

Means information that is by its nature confidential or a party knows or ought to know is confidential but does not include information which is or becomes public knowledge other than by breach of any confidentiality obligation.

Intellectual property (IP)

Means all intellectual property rights, including but not limited to:

a) patents, copyright, rights in circuit layouts, designs, trademarks (including goodwill in those marks) and domain names

b) any application or right to apply for registration of any of the rights referred to in paragraph a)

c) all rights of a similar nature to any of the rights in paragraphs a) and b) which may subsist in Australia or elsewhere

whether or not such rights are registered or capable of being registered.

IP Manager(s)

Means the person or persons responsible for the management and implementation of this policy, as designated by the Museum in section 7 of this policy.

IP Principles

Means the Intellectual Property Principles for Australian Government Agencies released by the Attorney-General’s Department in May 2007.

IP Register(s)

Means one or more registers which may be established and maintained by the IP Manager(s) in accordance with section 5.2.5 of this policy.

Material IP

Means IP which meets one or more of the criteria listed in section 4.2.1 of this policy

Policy

Means this Intellectual Property policy document and any schedules or attachments to it, as updated by the Museum from time to time.

The Museum has designated the following officers (IP Managers) to administer processes related to IP within the Museum.

Assistant Director, Audience, Programs and Partnerships

Is responsible for the overall application of the IP Policy and coordination of IP management and implementation in the Museum

Manager, Legal Services

Is responsible for advice and interpretation of the IP policy and IP procedures.

Manager, Copyright and Production Services

Is responsible for copyright clearances and licences, in consultation with the Manager, Legal Services where necessary.

Manager, Marketing

Is responsible for ensuring compliance of promotional and advertising activities with the IP policy and IP procedures, including all uses of the Museum’s brand.

Manager, Multimedia and Web

Is responsible for ensuring compliance of Museum website, multimedia and social media activities with the IP policy and IP procedures.

Business unit managers

Are responsible for ensuring awareness of, and compliance with, the IP policy and IP procedures in relation to the work of their business units.

All Museum staff

Are required to assist their business units and the IP Managers to keep Material IP records up to date and accurate.

ANAO IP Policies in Government Agencies – Audit Report No. 25 (2004) available at http://www.anao.gov.au/uploads/documents/2003-04_Audit_Report_25.pdf and later report at http://www.anao.gov.au/uploads/documents/2006-07_Audit_Report_22.pdf

Commonwealth Authorities and Companies Act 1997

Commonwealth Authorities and Companies Regulations 1997

Commonwealth Procurement Guidelines

National Museum of Australia Act 1980

Statement of Intellectual Property Principles for Australian Government Agencies, Attorney-General’s Department, May 2007 (updated October 2010) at http://www.ag.gov.au/Copyright/Pages/StatementofIntellectualPropertyPrinciplesforAustralianGovernmentAgencies.aspx

WIPO Guide on Managing Intellectual Property for Museums, August 2007, available at http://www.wipo.int/copyright/en/museums_ip/guide.html

This policy will be implemented by the Assistant Director, Audience, Programs and Partnerships, with assistance from the Manager, Legal Services and other IP Managers.

IP procedures will be progressively developed by the Manager, Legal Services in consultation with the other IP Managers, for approval by Executive Management, and implementation by the Assistant Director, Audience, Programs and Partnerships and relevant business units.

9.1 Coverage

This policy applies to:

9.1.1 Material IP that the Museum owns or licenses

9.1.2 all employees and contractor personnel of the Museum

9.1.3 visiting research fellows, students, donors, vendors, lenders, borrowers and any other third-party contractors to the extent that this policy is invoked to apply to them.

9.2 Other related policies and procedures

Asset management policy

Collections development policy

Communication policy

Cost recovery and charging for good and services policy

Digital preservation and digitisation policy

Indigenous Australian Art Charter of Principles for Publicly Funded Collecting Institutions

IT security policy

Online content and participation policy

Public programs policy

Publishing policy

Procurement policy

Research and scholarship policy

Recordkeeping policy

Sponsorship and development policy

9.3 Exclusions

This policy does not apply to IP which does not meet the definition or criteria for ‘Material IP’.

9.4 Superseded policies

This policy supersedes:

9.5 Monitoring

This policy will be monitored by the Assistant Director, Audience, Programs and Partnerships, in consultation with the IP Managers.

This policy will be reviewed in December 2014.