Research Integrity and Compliance

Intellectual Property Policy

Policy Code: RS2026

Purpose

This Policy sets out the principles and practices of Federation University Australia with respect to Intellectual Property (IP).  Matters considered in this Policy include the nature of IP, its ownership, exploitation and the associated specific procedures adopted within the University to manage IP.

Scope

This Policy applies to all Federation University Australia staff (academic, professional, technical and administrative), Affiliates of the University, and Students (undergraduate and postgraduate).

This Policy is incorporated by reference in the terms and conditions of the contract of employment of Staff, letters of appointment of Affiliates, and in the conditions of enrolment of Students.

Definitions

Term Definition
Affiliates Means Conjoint, Adjunct, Emeritus, academic title holders, Honorary appointments made in accordance with the relevant University policies and procedures.
Background Intellectual Property Any IP created or owned by the University that exists at the time new IP is created.
Commercialise

To exploit commercially and includes:

  1. in relation to an IP right; the exercise of all the rights exclusively granted to the holder of such IP rights by the laws of the jurisdiction in which the IP right subsists, including where permitted the right to sub-license those rights;
  2. in relation to a product, kit, apparatus, substance, documentation or information resource (or any part of such materials): to make, distribute, market, sell, hire out, lease, supply, or otherwise dispose of it; and
  3. in relation to a method or process: to use the method or process or to make, distribute, market, sell, hire out, lease, supply, or otherwise dispose of a product, kit or apparatus the use of which is proposed or intended to involve the exercise of the method or process.
Commercialisation Revenue Means the gross revenue actually received and retained by the University from the commercialisation and exploitation of specific IP, after the payment of any withholding, goods and services or other taxes, bank fees, transaction fees and other charges.  Commercialisation Revenue does not include income received from the provision of research, consultancy or other services. 
Contributor

A Staff member, Affiliate or Student who:

  1. is a Creator; or
  2. is a person that contributed to the creation, development or invention of the relevant IP, as determined in accordance with the relevant Procedure.
Copyright As per the definition in the  Commonwealth Copyright Act 1968 (Copyright Act), copyright covers the rights of Creators in certain creative works such as text, artistic works, music, computer programs, sound recordings and films
Course Materials All materials produced by Staff or Students in the course of, or for the use in, teaching at the University (for example, lecture notes and material, syllabi, handouts, study guides, course software and assessment materials) regardless of format (for example, printed, digital, electronic, multi-media presentations and web content), but excludes personal lecture notes by Staff that are not made available to Students or personal notes taken by Students to assist in study.  To the extent a work may be both Course Materials and a Scholarly Work, it will be treated in this Policy as course materials
Creator

A Staff member, Affiliate, or Student who:

  1. In the case of a patentable invention subject to the Patents Act 1990: is an Inventor;
  2. In the case of a copyright work or similar subject to the Copyright Act 1968: is an Author;
  3. In the case of a trade mark subject to the Trade Marks Act 1995: is a person who developed or first used the trade mark;
  4. In the case of designs registrable under the Designs Act 2003: is a designer;
  5. In the case of Plant Breeders Rights, under the Plant Breeder’s Rights Act 1994: is a Principal Breeder;
  6. In the case of circuit layouts, under the Circuit Layouts Act 1999: is a Designer; and
  7. In the case of trade secrets and know how: is a Creator of that body of knowledge.
Indigenous Traditional Knowledge Indigenous Australians’ rights to their heritage, consisting of intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity.
Intellectual Property (IP)

All statutory and other proprietary rights (including right to require information be kept confidential) in respect of inventions, copyright, trademarks, designs, patents, plant breeder’s rights, circuit layouts, know-how, trade secrets and all other rights as defined by Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967, whether registered or unregistered, all rights to apply for the same and, for the avoidance of doubt, includes:

Patents under the Patents Act 1990 (Cth);

Copyright vesting by virtue of the Copyright Act 1968 (Cth) in literary works (including computer programs and data), dramatic works, musical works, artistic works, films, sound recordings, broadcasts, published editions and certain types of performances;

  1. Trade marks registered or registrable under the Trade Marks Act 1995 (Cth);
  2. Designs registered or registrable under the Designs Act 2003 (Cth);
  3. New plant varieties under the Plant Breeder’s Rights Act 1994 (Cth);
  4. Circuit layouts (computer chips) under the Circuit Layouts Act 1989 (Cth); and
  5. Trade secrets and other confidential material under Common Law.
Intellectual Policy Officer The Deputy Vice-Chancellor (Research and Innovation)
Moral Rights

Moral rights are the:

  • right of attribution of authorship. The author has the right to be identified as the author of the work or film when it is presented to the public. The attribution must be reasonably clear and prominent
  • right against false attribution of authorship. The author has the right not to have their work attributed falsely to someone else and not to have an altered work being attributed as unaltered
  • right of integrity of authorship. The author has the right to have the integrity of their work respected and not subjected to derogatory treatment. A treatment is derogatory if it in some way prejudicially affects the honour or reputation of the author
Net Proceeds of Commercialisation

With respect to IP, means the net proceeds actually received by the University from Commercialising that IP after:

  1. Total commercialisation costs have been recovered or deducted from commercialisation Revenue; and
  2. The legitimate claims of third parties are satisfied.
Pre-Existing IP IP that is developed and is owned by a Staff member, Affiliate, or Student prior to the date of their employment, enrolment or engagement at the University.
Specifically Commissioned Means work requested by the University by agreement, where particular consideration is given.  This may include financial consideration or relief from teaching or other duties.
Staff Means the officers and employees of the University, and includes academic, professional, technical and administrative officers and employees.
Student Means any student (including undergraduate and postgraduate student) enrolled in an approved course at the University, or in a course or program of study conducted by or on behalf of the University.
University Federation University Australia.
University Resources Resources of the University which includes, without limitation, premises, facilities, funds, services, equipment, paid leave, Staff time and support Staff.
Third Party Any person other than Staff, an Affiliate or a Student who creates IP while taking part in any research project such as co-operative research centre, scholarly activity or occupational traineeship using University Resources and in conjunction with a Staff member or Student.

Policy Statement

1. Ownership of IP

1.1        Ownership by the University of IP developed by staff

 

Except as otherwise stated in this Policy, the University asserts legal and beneficial ownership rights over all IP, and to ensure that such ownership rights vest in the University, staff must assign to the University all IP:

  1. Created by staff in the course of their employment by the University, which is the generation, creation or realisation of any act, work, research or idea by reason of:
    1. the use of University resources; or
    2. participation in any project or program supported by funding obtained or provided by the University; or
    3. a course of research being undertaken at the University, either in collaboration with other staff members or students or any third party.
  2. Created by affiliates where:
    1. generation of the IP has required use of University Resources; or
    2. generation of the IP has resulted from the use of Background IP owned by the University; or
    3. the IP is a component of IP generated by a team of which this person is a member and other members are University Staff; or
    4. the IP has been generated as a result of any funding provided by or obtained by the University.

1.2        Ownership by the University of IP developed by students

1.2.1    Postgraduate Research Students

 IP created by a postgraduate research student:

  1. in pursuance of the postgraduate research student’s studies, scholarship or research with the University; or
  2. in respect of the creation of which the University has contributed other University owned IP or has made a specific contribution of funding, resources, facilities, apparatus or supervision

will be owned by the University.

The University will grant a non-exclusive, royalty free licence to reproduce, publish, perform, broadcast, disseminate and otherwise use for study, scholarship or research purposes at the University any IP created by a postgraduate research student which does not have any potential for commercial exploitation. The postgraduate research student will, prior to any use pursuant to the licence granted under this clause, obtain written notification from the University that the IP does not have any potential for commercial exploitation.

The University will negotiate with a postgraduate research student who creates any IP which has any potential for commercial exploitation the apportionment of any net profit or other share derived from any commercial exploitation of the IP in accordance with the Regulation 8.2.

Nothing in this section places any obligation on the University to commercially exploit the IP, which the University may deal with or otherwise in its absolute discretion.

The postgraduate research student will own copyright in his or her thesis. The University may delay publication of, and limit public access to, a thesis containing confidential information for a period of up to 2 years and require examination in confidence of such theses.

1.2.2        Students 

Subject to section 1.2.1 any IP created by a student in pursuance of the student’s studies, scholarship or research with the University will be owned by the student.

Any IP created by a student in collaboration with a staff member and/or postgraduate research student:

  1. in pursuance of the student’s studies, scholarship or research with the University; or
  2. in respect of the creation of which the University has contributed other University owned IP or has made a specific contribution of funding, resources, facilities, apparatus or supervision will be owned by the University.

The University will grant a non-exclusive, royalty free licence to reproduce, publish, perform, broadcast, disseminate and otherwise use for study, scholarship or research purposes at the University any IP created by a student but which does not have any potential for commercial exploitation. The student will, prior to any use pursuant to the licence granted under this clause, obtain written notification from the University that the IP does not have any potential for commercial exploitation.

The University will negotiate with a student who creates any IP which has any potential for commercial exploitation the apportionment of any net profit or other share derived from any commercial exploitation of the IP in accordance with the Regulation 8.2.

Nothing in this section places any obligation on the University to commercially exploit the IP, which the University may deal with or otherwise in its absolute discretion.

The Vice Chancellor or IP Officer may, except in cases as outlined in 1.2.3 assign IP back to the student Creator. 

1.2.3            Exceptions to University assignment of IP to the student Creator

The University will not assign ownership of IP created by Students where the IP:

  1. Consists of course materials; and/or
  2. Has been separately assigned to Federation University Australia under a specific agreement with the Student; and/or
  3. Has been jointly developed with University staff and the student is deemed to be a co-Creator; and/or
  4. Is the subject of an existing agreement between the University and a third party.

The University will have the right to protect and commercialise any IP over which it asserts legal and beneficial ownership and may assign or licence such IP to third parties, with the right to sub-licence, unless otherwise agreed in writing.

1.3        Ownership by the University of IP developed by Students who are also Staff

 Except as otherwise stated in this Policy, the University asserts legal and beneficial ownership of IP developed by students who are also staff where the IP has been developed as a direct result of their employment.

1.4        Ownership of Pre-Existing IP

 The University does not assert ownership over pre-existing IP.  However, staff and students must register pre-existing IP with the IP Officer within 30 days of commencement of employment or enrolment through the Procedure for Disclosing and Exploiting IP.  If no advice is received, then any IP developed or disclosed during the period of employment or enrolment will be treated as University-owned IP.

1.5        Ownership of Course Materials and scholarly works not specifically commissioned or created with use of University Resources

 The University asserts ownership of all University-commissioned course materials.  The University asserts ownership of any IP in scholarly books, journal articles, course materials, or other scholarly works or subject matter generated (whether in written or any other form) by staff or students where the work is:

  1. Specifically Commissioned by the University; or
  2. Produced with the assistance of University Resources.

Subject to the above exclusions, the ownership of IP in scholarly books, articles, Course Materials, or other scholarly works or subject matter generated is retained by the Creator.

The Creator grants to the University a perpetual, royalty free, non-exclusive licence to use such scholarly books, journal articles, course materials, or other scholarly works or subject matter generated by that Creator for the University’s teaching and research purposes. The non-exclusive licence to use such scholarly books, journal articles, course materials, or other scholarly works or subject matter persists should the Creator leave the employ of the University. This licence will not supersede any copyright held by a publisher.

1.6        Ownership of Course Materials specifically commissioned

 The University asserts ownership of all course materials that have been specifically commissioned. The University may give the Creator(s) of specifically commissioned course materials a non-exclusive licence to use the course materials for teaching purposes, provided that the licence will not extend to the use of the course materials for any purpose which is in direct competition to the University.

Where the University does not wish to commercialise specifically commissioned course materials and advises the Creator(s) accordingly, the Creator(s) may request the assignment of the ownership rights of those course materials to the Creator(s) or any one of them. The University will retain a non-exclusive licence for educational purposes.

1.7        Ownership of artistic, musical, dramatic or creative works

The University does not assert any right or claim to ownership of the IP in artistic, musical, dramatic or other creative works created or composed by its Staff or Students, except where these works have been specifically commissioned by the University, or are created in whole or in part with the use of University Resources.

2. Assignments of IP

At the request of the University, staff members and students will execute, in a timely manner, all deeds of assignment and other documentation necessary to give effect to the IP ownership, protection, use, and commercialisation provisions set out in this Policy.

2.1        Effect of this Policy on Existing Arrangements

 All existing legally binding contracts, deeds and agreements entered into by the University at the effective date of this Policy, will remain in full force and effect.  Their terms will prevail in the event that a conflict arises with this Policy.

2.2        Assignment of IP Ownership by the University

 The University may assign its rights, title and interests in IP owned by it to third parties in accordance with this Policy.

 2.3        Dealings by Staff or Students

 No staff member of student may act on behalf of the University, or act in their own name, to assign, licence, protect or otherwise deal with IP which is the property of the University, or over which the University asserts right under his Policy, unless specifically delegated to do so in writing.

Where a student owns IP and there are no other Creators, a student may in their own name, assign, license, protect or otherwise deal with that IP in accordance with the Disclosing and Exploiting Intellectual Property Procedure.

3. Copyright Ownership Statement

All material in which the University owns the Copyright must include the following Copyright statement:

© Copyright Federation University Australia [year]

4. Students

4.1        Conditions to apply to Students

Where students agree to be involved in research activities that could lead to the development of IP over which the University or a third party may claim ownership or other rights, the following conditions will apply:

  1. the supervisor or course coordinator will make it clear to students what the nature of the work and theconditions of their involvement are before they undertake the research activity; and
  2. participation in the research will not interfere with the assessment of the student's academic performance; and
  3. any confidentiality and/or IP assignment agreement should only be signed by Students after they have been first advised to obtain independent advice; and
  4. the Student must formally assign, in advance, all right, title and interest they may have in any IP to theUniversity before the Student will be permitted to engage in such research; and
  5. the Student's copyright and moral rights in any thesis or publications arising from the research will beretained by the Student, unless subject to a third party agreement; and
  6. the Student will receive consideration and other rights commensurate with those that a Staff member would otherwise have under the Policy, unless subject to a third party agreement; and
  7. any delays in publication of the thesis or any part thereof that arise from a confidentiality and/or assignment agreement will be limited to a maximum of two years, unless otherwise approved by the Dean, Graduate Studies.

5. Student research at other institutions

Where Students may be involved in research carried out at institutions which are affiliated with the University or at other institutions independent of the University and where the University does not assert ownership of IP, agreement must be reached in writing between the student and the host institutions regarding the rights of the student to IP.

6. Research Supervisors

Supervisors electing to supervise a student in an area whose research activities are covered by third party agreements must ensure a confidentiality and IP assignment agreement is completed between the University and the student before the work is commenced. Some projects may not be available to students who choose not to sign a confidentiality and/or IP assignment agreement.

7. Indigenous Traditional Knowledge

If Indigenous Traditional Knowledge is involved in any proposed research and/or commercialisation activities by the University, the University must consult with indigenous representatives appropriate to the nature of the proposed activities, to ensure appropriate recognition and protection is given to such Indigenous Traditional Knowledge and its owners.

Consistent with the University's recognition of the significance of Indigenous Traditional Knowledge, the University will:

  1. not commercialise IP developed using Indigenous Traditional Knowledge without the approval and involvement of the holders of such Indigenous Traditional Knowledge;
  2. ensure the equitable sharing of benefits arising from Indigenous Traditional Knowledge; and
  3. acknowledge the source of the traditional knowledge from which such IP is derived.

8. Exploitation of IP owned by the University

Where a Staff member or Student develops IP over which the University asserts ownership rights under this Policy they must follow the Disclosing and Exploiting Intellectual Property Procedure.

9. Disbursement of Net Revenue from Commercialisation

Any Net Revenue from IP commercialisation will be disbursed as follows:

  • 1/3 to the Creator/s,
  • 1/3 to the University, and
  • 1/3 to the relevant School or Department of the University.

The Disbursement of Net Revenue from Intellectual Property Commercialisation Procedure will apply.

10. Vice-Chancellor as Attorney

A Creator will, as required by The University, complete all documentation or any other action that the University deems necessary for the commercialisation and Exploitation of IP owned by the University.

If a Creator fails to complete any documentation or any other action that the University deems necessary for the commercialisation and exploitation of IP owned by the University, the Vice-Chancellor has the right to execute all such documents and do all such acts as their attorney. The Vice-Chancellor may exercise such power of attorney even if The University benefits from this power.

This Power of Attorney does not extend to instances where failure to complete documentation is a result of conflicts as to ownership of the IP, or where there is a dispute between the Creators and the University. In these instances, the Section dealing with the Resolution of Disputes will apply (Section 12).

11. Moral Rights

The University recognises the moral rights of the Creators of IP in accordance with the Commonwealth Copyright Act 1968.

12. Disputes over IP Ownership

Disputes between Staff, between Students or between Staff and Students arising under this Policy will be dealt with under the Staff Grievance Policy & Procedure, Student Grievance Policy & Procedure, as appropriate.

Responsibility

  • The Deputy Vice-Chancellor (Research & Innovation), as the Approval Authority, is responsible for monitoring the implementation, outcomes and scheduled review of this Policy and its accompanying Procedure/s.
  • The Director, Research Services, as the Policy Sponsor, is responsible for maintaining the content of this Policy as delegated by the Deputy Vice-Chancellor (Research & Innovation).
  • Research Services is responsible for the administration support for the maintenance of this Policy as directed by the Deputy Vice-Chancellor (Research & Innovation).

Promulgation

The Intellectual Property Policy will be communicated throughout the University via:

  1. an Announcement Notice via FedNews website and on the ‘Recently Approved Documents’ page on the ‘Policies, Procedures and Forms @ the University’ website to alert the University-wide community of the approved Policy;
  2. distribution of e-mails to Head of School / Head of Department / University staff; and/or
  3. Notification to Faculties

Implementation

The Intellectual Property Policy will be implemented throughout the University via:

  1. an Announcement Notice via FedNews website and on the ‘Recently Approved Documents’ page on the ‘Policies, Procedures and Forms @ the University’ website to alert the University-wide community of the approved Policy;