Intellectual property

PURPOSE:

The purpose of this policy is to ensure QLeave manages its intellectual property (IP) assets and that the management of IP supports QLeave’s objectives while ensuring that the risks associated with the use of IP are minimised and managed.

SCOPE:

This policy applies to all employees and agents of QLeave.  Intellectual property is created by QLeave employees in performing their official duties or created by consultants or contractors working on behalf of QLeave.

CONTEXT:

This document defines QLeave’s policy with regard to the identification, recording, protection, defending and managing conditions of access of QLeave’s intellectual property.

POLICY:

What is intellectual property?

Intellectual Property is a bundle of intangible (abstract) rights, which protect the result of innovative or original creative work.  Intellectual  property involves allocation of property rights for the creative and organisational efforts involved in developing new products, processes, designs and materials.

Intellectual property rights allow the owner of the rights to prevent others from engaging in unauthorised use.

The main categories of intellectual property are patents, trademarks, designs (all of which must be applied for) and copyright and confidential information.

Copyright

Copyright is essentially a bundle of rights which is created by the Copyright Act 1968.  This Act primarily enables copyright owners to stop others from using their work in certain ways, the most common being to stop reproduction of the work.  Copyright only exists when ideas are reduced to a material form such as literary works, dramatic works, musical works, films, television and radio broadcasts and published editions.

Copyright is usually held by the author (or creator) of the work.  However, in the case of employees who create works in the course of employment, then the Copyright Act provides that the owner of the copyright is the employer.  This is different to independent contractors who, unless they are working for the government, will own the copyright in all works produced by them.

When working for QLeave as a public sector employee or contractor, copyright will be owned by QLeave where it is made or published under the direction or control of QLeave.  This means that where public sector employees create copyright in the course of their employment the copyright rests with QLeave.  Copyright ownership will also extend to copyright created under a consultancy or contractual arrangement with QLeave (e.g. independent contractors).

It is the responsibility of all managers and coordinators to protect copyright through the following precautionary measures:

Where the company requires ownership of the intellectual property and when contracting someone to produce a result which may incorporate material which is the subject of copyright, to ensure wherever possible that an agreement is signed which assigns the copyright from the author to QLeave or that it automatically vests with QLeave.  If an assignment is not agreed to, a licence to use and reproduce the material should at least be obtained.  For example, when engaging external contractors to develop a computer system / program, the contractor should include provisions ensuring copyright vests with QLeave;
Ensure that when purchasing a computer program, QLeave has the appropriate licence or other right to use the intellectual property to use the program on the required computers and also to reproduce the program where that is required (at least for back up purposes).  Also to ensure that nothing is done which is outside of that permissible when in possession of intellectual property rights (for example, computer programs) which it does not own;
Ensure  that employees and contractors sign confidentiality agreements to protect trade secrets and confidential information by including these in standard documents; and
Take steps immediately if there is an infringement of any of QLeave's intellectual property rights.

Other ways of ensuring protection for Intellectual Property

In addition to the above means of ensuring protection of QLeave’s intellectual property, a written agreement may also be a useful means of protecting intellectual property, particularly when developing new intellectual property in collaboration with another party.

Confidentiality Agreements

One way to prevent appropriation of ideas or partly developed intellectual property is through the use of confidentiality agreements.  As a legally enforceable contract not to release the information provided in confidence, it provides the means by which QLeave may restrain and recover damages for conduct in breach of the confidentiality that has been established.  A valid agreement is vital if you require the assistance of other parties to further develop intellectual property.

Development Agreements

Where two or more parties collaborate on the development of certain intellectual property, agreement should be reached up front as to who is to own the intellectual property.  This agreement needs to incorporate all features of the proposed arrangement.

Licence Agreements

Where others may seek to use QLeave’s property, appropriate arrangements must be made to protect QLeave’s intellectual property.   A licence is a limited permission from one party to the other to use nominated intellectual property rights for specified purposes and subject to certain constrictions.

QLeave may licence another party to use computer software programs developed by it for the purposes of establishing an on-line database.  The licensee may use the software but may not make any modifications or enhancements to it without QLeave’s permission, nor must the licensee on-licence the use of the software to a third party.

Confidential Information

The law protects confidential information from disclosure in a number of circumstances:

Information, which is by its nature is confidential, such as technical (chemical formulae) and business secrets (customer lists);
Information arising out of a confidential relationship, eg relationship of doctor/patient or lawyer/client; and
Information  identified as confidential either under written agreement or where it is in the public interest that it remain confidential.

It is important to ensure that confidential information is protected by:

Ensuring material that is highly confidential (documents, disks, reports) is clearly marked on the material;
Realising the risks involved in certain methods of communication when transmitting confidential information: eg when faxing confidential information ensure the appropriate person is at the other end waiting for the document.  Also if all mail is opened in the mail room prior to receipt by the individual then have it personally delivered or clearly marked private and confidential;
If information is to be kept secret, then employees are to be educated (and under express obligations) to keep the information arising out of their work situation secret;
Where it is necessary to disclose confidential information to other parties (negotiating commercial deals), employees need to realise the information is confidential and should be asked to sign confidentiality agreements; and
Act immediately if there has been any unauthorised disclosure or it becomes apparent that information is going to be disclosed.

Trademarks

Essentially trademarks are a means of identifying providers of goods and services and they indicate the origin of the goods and services.  Trademarks need not be registered to gain statutory protection, as there are other actions, such as passing off and misleading and deceptive conduct under Trade Practices Act 1974 which can be brought against the unauthorised user of the mark.

If a trademark infringement were to occur, then appropriate legal action should be taken to ensure that damage to the goodwill and reputation of the organization does not occur or is minimised.

While not a trademark, “QLeave” has been registered as the official trading name of the Building and Construction Industry (Portable Long Service Leave) Authority and the Contract Cleaning Industry (Portable Long Service Leave) Authority, as a means of providing protection over its use which helps to minimises risks to the reputation of our organisation.

Patents

A patent is an invention which, when registered under the Patent Act 1990 entitles the inventor to a statutory monopoly to exploit the invention in Australia.   The nature of QLeave’s business makes it unlikely that intellectual property would arise in the normal course of business that would need protection by way of patent.

Designs

A design of an article is the shape, configuration, pattern or ornamentation of the article.  A design can be protected by registration.  Where the design is made for a person under agreement, that person (not the designer) has the right to register the design.  Also, where an employee makes a design in the course of employment, it is the employer who is entitled to register the design.   The nature of QLeave’s business makes it unlikely that designs would arise in the normal course of business that would need protection.