Section 1 - Introduction
(1) The University is committed to fostering a culture and environment which advances excellence in research and teaching, promotes entrepreneurship and innovation, engagement with our community, and supports the dissemination and translation of knowledge for social and economic impact in and for our region and beyond. It recognises that intellectual property (IP) in forms including patents, copyright, designs and trademarks created as a result of these activities is a significant and valuable asset, which must be responsibly managed to support the mission of the University, acknowledge the rights and appropriate reward creators and inventors, and optimise benefits for the University and our communities.
(2) This policy provides clear guidance on the University's position in relation to the ownership and management of intellectual property including its creation, use, sharing, protection and translation/ commercialisation within the organisation’s risk management framework. It supports the National Principles of Intellectual Property Management for Publicly Funded Research identified by the Australian Research Council (ARC) and the National Health and Medical Research Council (NHMRC).
(3) The ownership of intellectual property created by staff members and students of the University is determined by the terms of this Policy which should be read in conjunction with the Intellectual Property Procedure.
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Section 2 - Policy Intent
(4) This policy is intended to promote, incentivise and reward the dissemination and translation of knowledge, the advancement of teaching, learning and research with the goal of generating social and economic impact and the availability of knowledge for the public benefit.
(5) The principal objectives of this policy are to give certainty about IP rights in the University, to encourage and support scholarly activity and to allow any staff member or student of the University (or group of them) who creates, whether or not in conjunction with another person, any IP (“the originator”) in all of its forms, to share in the benefits of translation and/or commercialisation of University IP, which is IP owned by the University according to the terms of this policy or otherwise as a matter of law.
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Section 3 - Document Specific Definitions
(6) Artistic works means original copyright material that is artistic in character, including paintings, sculptures, manuscripts, prose works (fiction and non-fiction), poetry, music, films, photographs, sound recordings, broadcasts and dramatic works.
(7) course of their duties - means for a staff member:
- the scope of the duties as a staff member as set out in the terms and conditions of any relevant Workplace Agreement, contract of employment, policies, position description, duty statement or other agreement between the staff member and the University in effect at the time at which the University IP or other intellectual property was generated;
- activities using University resources, including University IP, laboratories, facilities that the University owns or has right of access to, University funds, services, equipment, computer laboratories, media equipment, consumables, chemicals, staff time and other University provided services; or
- Activities undertaken within the scope of a University project.
(8) Course materials – means:
- any copyright work whether in electronic, written or any other form of media created by a staff member specifically for use in, or in connection with a course, subject or unit offered or to be offered by the University or by an affiliated provider;
- any materials commissioned by the University specifically for use in, or in connection with a course, subject or unit offered or to be offered by the University or by an affiliated provider unless there is an agreement to the contrary.
(9) Computer works include without limitation:
- computer software in any form and on any medium;
- multi-media works in any form which are accessible wholly or partly by means of a computer;
- webpages and websites;
- copyright works created with the intention of accessing them primarily by computer; but
- does not include works in the public domain.
(10) Indigenous Cultural and Intellectual Property or ICIP – means tangible and intangible cultural heritage that pertains to a particular Indigenous clan or community and is transmitted from generation to generation, as reflected in article 31 of the United Nations Declaration of the Rights of Indigenous Peoples, including:
- traditional knowledge, such as scientific, ecological, agricultural, technical, secret, sacred and ritual knowledge;
- traditional cultural expression, such as stories, song, dance and performance, designs and symbols, literature, ceremonies, secret and sacred material;
- human remains and tissues;
- documentation of indigenous peoples’ heritage in all forms of media such as films, sound recordings, photographs, artistic works, books, reports and records taken by others;
- Lands, seas and waterways; and
- Genetic resources, organisms, flora, fauna, and seeds used and nurtured by Indigenous people throughout generations.
(11) Open educational Resources (OER) - OER are, as detailed by UNESCO, “learning, teaching and research materials in any format and medium” that have been released under an open licence or public domain dedication. OER permit no-cost access, re-use, re-purposing, adaptation, and redistribution by educators and users. The scope of OER can be small (such as a checklist or infograph), medium (a video or book), or large (an entire course).
(12) Originator (or originators) means University staff, student or title holder who:
- in the case of a patentable invention: is an inventor;
- in the case of a copyright work or similar: is an author;
- in the case of a word, colour, smell, slogan, image or similar to be used as a trademark: is a person who conceived, developed or first used the word, colour, smell, slogan, image or similar as a trademark;
- in the case of designs: is a designer;
- in the case of plant breeders rights: is a breeder;
- in the case of circuit layouts: is a designer; and
- in the case of trade secrets and know-how: is an originator of that body of knowledge
(13) purposes – means the purposes of the University from time to time as expressed in the University of Newcastle Act 1989 (NSW) and the University's Strategic Plan and supporting plans;
(14) Scholarly works – means the copyright in any material intended for academic publication produced by a staff member or student based on their scholarship, learning, or research (including academic publications, journal articles, presentations, papers, books, or other non-traditional research outputs such as artistic works, but does not include course materials or computer works)
(15) University IP – means Intellectual property that is owned by the University
(16) University project – means a self‐contained program of work or research administered by or on behalf of the University which is funded by:
- an external source; or
- a specific direct allocation of infrastructure support or other University resources beyond that which is ordinarily provided to a School or other University organisational unit, Research Institute or University Research Centre.
(17) commercialisation/commercialise – in relation to intellectual property means to make, sell, copy, adapt, apply, publish, develop, use, assign, license or otherwise utilise the intellectual property for the purpose of generating financial or other commercial gains. For the purposes of this policy this definition excludes fees paid by students enrolled in a program leading to a University of Newcastle award.
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Section 4 - Ownership of Intellectual Property Created by Staff
(18) The University owns all IP created by staff members within the course of their duties except for:
- artistic works;
- scholarly works;
- IP where ownership is provided for in an agreement entered into between the University and the staff member or student.
(19) Staff members grant to the University a free, perpetual, irrevocable, non-exclusive licence to use (including the right to sub-license) their artistic works and scholarly works for University purposes. This licence is subject to any overriding contractual obligations owed to third parties of which the University has been made aware.
(20) Staff members will make all reasonable efforts to ensure that the licence granted above can be provided to the University when reaching agreements with third parties and notify the University as soon as practicable after entering into contractual obligations that would otherwise restrict such a licence.
(21) The copyright in an artistic work created by a staff member in the course of their duties is owned by the Originator(s) of the work and the University makes no claim to ownership of the copyright in such works, except to the extent that such artistic works were specifically commissioned by the University.
(22) Where there is doubt about whether a work is to be regarded as an artistic work, the Deputy Vice-Chancellor (Research and Innovation), after obtaining advice from suitably-qualified advisers, will determine the matter.
(23) The copyright in a scholarly work created by a staff member in the course of their duties is owned by the Originator(s) and the University makes no claim to ownership of the copyright in such works, except to the extent that such scholarly works were specifically commissioned by the University.
(24) Where there is doubt about whether a work is to be regarded as a scholarly work, the Deputy Vice-Chancellor (Research and Innovation), after obtaining advice from suitably-qualified advisers, will determine the matter.
(25) The University owns the copyright in course materials created by staff members except that:
- the University's ownership of such course materials is subject to any pre-existing rights in copyright works which are incorporated in the course materials. Where there are such pre-existing rights, the University will obtain and/or use a licence to use any such works;
- course materials, other than course materials referred to in subsection (c) below, may only be published by a staff member, including by electronic means, with the prior written authorisation of the Head of School or the staff member's supervisor; and
- course materials may be published by a staff member without the need to obtain authorisation where the publication:
- is via the Learning Management System; or
- is solely for use in the teaching of a University course or program or a University-approved course or program, either directly by a staff member or by another institution under a written contract with the University.
(26) Where course materials (or content derived therefrom) will benefit the community or the institution, the University may grant permission for these materials to be created as or converted to Open Educational Resources (OERs).
(27) Where course materials are created as or converted to OERs, the moral rights of the creator/s must be appropriately acknowledged when releasing materials under an open licence.
(28) Where creation as or conversion to OER is approved, the University supports the application of Creative Commons licensing to allow for reuse, retention, revision, remixing, and redistribution.
(29) Creation as or conversion to OER and the associated application of open licensing may not be appropriate where course materials are to be commercialised, contain confidential information, or where publication of such material would infringe on the rights of others or legal commitments by the University.
(30) Further to 23 and 24, creation as or to conversion to OER will require that use of all materials included is appropriately licensed and attributed and will not infringe on the copyright of third parties.
(31) The University owns the copyright in computer works developed by a staff member within the course of their duties other than those in the public domain. It may upon request and on such terms as the University may reasonably determine agree to assign the rights in a computer work to the staff member for purposes of attracting research or other funding but will retain a licence to use the computer works for University purposes.
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Section 5 - Open Access
(32) Research outputs, including scholarly works, non-traditional research outputs, and research reports, should be made open access wherever possible, in accordance with the Open Access Policy;
(33) Where there is doubt about whether a work is to be regarded as a research output, the Deputy Vice-Chancellor (Research and Innovation), after obtaining advice from suitably qualified advisers, will determine the matter.
(34) The University may grant permission for Researchers to follow open data practices or otherwise make research data available in accordance with the Research Data and Primary Materials Management Procedure and the Open Access Policy. Open data practices may not be appropriate where data is to be commercialised, contains confidential information, or where the availability of data would infringe on the rights of others or legal commitments by the University.
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Section 6 - Ownership of Intellectual Property Created by Students
(35) Students own the intellectual property created in their capacity as a student during the course of their enrolment at the University except as otherwise provided in this policy or specified in a separate agreement between the student and the University.
(36) The University will own intellectual property created by students when they participate in an activity that:
- builds upon pre-existing University IP; or
- is carried out for or in conjunction with third parties who have entered into an agreement with the University, including but not limited to Work Integrated Learning/Career Ready Placement project; or
- is intended to be commercialised by or on behalf of the University; or
- is undertaken with a specific contribution by the University. A specific contribution means funding, resources, facilities or apparatus contributed by the University (beyond that which is ordinarily contributed) but excludes a scholarship awarded by the University; or
- is intended to support University commercial activities.
(37) To give effect to clause 33, the University will request as a condition of a student's participation in a relevant activity, or enrolment in a course of study, that the student enter into an agreement with the University to assign their intellectual property rights to the University and/or agree to other restrictions prior to commencement of the student's participation or enrolment.
(38) Where a student creates intellectual property in their capacity as a staff member, section 4 of this policy will apply to intellectual property created by the student, in place of this section 8.
(39) Notwithstanding clause 34, the copyright in a student's thesis is owned by the student unless the student agrees otherwise in writing except that, subject to any confidentiality requirements, the University reserves the right to make a copy of any student's thesis available via the University library or University digital thesis database.
(40) A student who is required to enter into an agreement under this Section of the policy will be advised by their supervisor or the person in charge of the activity or course to seek independent legal advice.
(41) In the event that the student assigns intellectual property rights to the University, the student will receive benefits as an Originator under this policy and the Intellectual Property Procedure in relation to that assignment.
(42) Ownership in student submissions to courses, such as assessable materials, remains with students. Where such submissions are desired to be used as samples for future offerings of courses, an agreement from the student involved will be required to allow such use. Staff members should consider whether anonymising this material will be of benefit and discuss this with the student.
(43) Where a student generates intellectual property, the student and supervisor will consult to ensure the appropriate recognition of any verifiable contributions by the supervisor or any other person in relation to the generation of the intellectual property.
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Section 7 - Ownership of Intellectual Property by Visitors and Conjoint Appointments to the University
(44) The University makes no claim to ownership of intellectual property created by a visitor to the University or conjoint appointee to the University except where the visitor or conjoint appointee is involved in a University project or uses University IP, in which case an agreement will be required before the University project or the use of the University IP commences.
(45) Guest lecturer materials may not be re-used or published without the consent and agreement of the guest lecturer. No assumption should be made for the use of such material beyond the year of the event without including this ability in the agreement.
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Section 8 - Bringing Intellectual Property to the University
(46) The University requires a staff member or student who brings intellectual property to the University to provide documentation in relation to the intellectual property to Knowledge Exchange & Enterprise, within six months of commencement at the University, including confirmation of ownership and that the relevant intellectual property was created prior to commencing at the University in accordance with the Intellectual Property Procedure.
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Section 9 - Dealing with a Copyright Work when a Staff Member Ceases University Employment
(47) The University requires a staff member who is leaving the University and who has in the course of their duties created a copyright work owned by the University, to do all things necessary to ensure that the University's IP in the copyright work is retained and protected.
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Section 10 - Moral Rights
(48) The Copyright Act 1968 (Cth) protects the moral rights of creators of works by acknowledging a right of attribution of authorship, a right not to have authorship falsely attributed, and a right of integrity of authorship of the work. The University recognises the moral rights of creators. Staff members and students must respect, and otherwise not infringe these moral rights.
(49) The University will undertake reasonable endeavours to respect the moral rights of the creators of works when using those works for University purposes. Staff and students who are creators of IP that is owned by the University, or who grant permissions to the University to use their IP in accordance with this Policy, consent to the University infringing their moral rights where it would be reasonably necessary to enable use of the work for University purposes. This may include where a staff member creates documents or other works (for example, logos or other marketing collateral) for use in University operations, or where attribution is not feasible or convenient due to:
- the nature of the work;
- its intended use; or
- the number of Orignators involved.
(50) The University is not obliged to take any action if the moral rights of creators are infringed by third parties.
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Section 11 - Cultural Property Rights of Indigenous Peoples
(51) The University acknowledges and recognises that ICIP must be respected and preserved and will be considered in any dealings with intellectual property under this policy in accordance with the University's Aboriginal and Torres Strait Islander Cultural and Intellectual Property Policy Protocol.
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Section 12 - Registration of University IP
(52) The University will maintain an Intellectual Property Register managed by Knowledge Exchange & Enterprise which will be reported annually to the University Council. The process for a staff member and/or student to notify the University regarding University IP is outlined in the Intellectual Property Procedure.
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Section 13 - Commercialisation of University IP
(53) When University IP is entered on the Intellectual Property Register, Knowledge Exchange & Enterprise will determine, in accordance with the Intellectual Property Procedure and the University's Risk Management Framework whether the University wishes to commercialise the University IP.
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Section 14 - Apportionment of Net Revenue from Commercialisation of University Intellectual Property
(54) Where the University decides to commercialise University IP, it will share the net returns from the commercialisation with the originator(s) in accordance with the Intellectual Property Procedure.
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Section 15 - Advising Staff Members and Students of Their Rights and Obligations
(55) The University, through the Knowledge Exchange & Enterprise team, will take all reasonable steps to ensure that the provisions of the Intellectual Property Policy and Intellectual Property Procedure are made known to staff and students.
(56) In any dealings involving students and their intellectual property, the University will assist students to protect their intellectual property rights in accordance with the Intellectual Property Procedure.
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Section 16 - Intellectual Property Agreements
(57) On a case-by-case basis following the determination period, the University may enter into agreements concerning intellectual property rights and ownership, including agreements to assign ownership of intellectual property. This includes agreements with external parties and agreements with staff member(s) and/or student(s).
(58) If the University wishes to enter into an agreement with an external party concerning the funding and ownership of intellectual property produced in the course of a University project, the University will, as far as is practicable, consult with the staff member(s) and student(s) who will be affected by the agreement.
(59) Staff members or students who wishes to engage with an external funder and/or licensee regarding University IP must contact the Knowledge Exchange & Enterprise for commercial advice, negotiation and approval of any agreement.
(60) Where an agreement concerning intellectual property contains a confidentiality provision, the University may require any staff member(s) or student(s) involved in activities covered by that agreement to sign a licence or confidentiality agreement, as the University may determine.
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Section 17 - Assignment of University IP
(61) University IP may only be assigned to the originator(s) with the written approval of the Deputy Vice-Chancellor (Research and Innovation) in accordance with the Intellectual Property Procedure.
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Section 18 - Non-compliance with this Policy
(62) Breaches of this Policy, including the misuse or unauthorised use of University IP, may constitute misconduct of serious misconduct, which may result in disciplinary action, or other action, up to and including termination of employment, affiliation, engagement or other commensurate action.
(63) To raise concerns about potential breaches of this Policy, refer to the Complaint Management Policy, Resolving Workplace Concerns and Grievances Procedure, or the Public Interest Disclosures Policy.
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Section 19 - Implementation, Interpretation and Authorisation
(64) The Deputy Vice-Chancellor (Research and Innovation) is responsible for the implementation of this policy, the management of University IP and for providing assistance on the interpretation of this policy.
(65) The Knowledge Exchange & Enterprise team should be contacted for advice about the operation of this policy and the Intellectual Property Procedure.
(66) Approvals for all on behalf of the University on matters relating to intellectual property will be in accordance with the University Delegations of Authority.
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Section 20 - Dispute Resolution
(67) A dispute arising from the interpretation or operation of this policy will be dealt with in accordance with the Intellectual Property Procedure.
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Section 21 - Review
(68) This policy will be reviewed every three years by the Deputy Vice-Chancellor (Research and Innovation).
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Section 22 - Relaxing Provision
(69) The Vice-Chancellor or Deputy Vice-Chancellor (Research and Innovation) may relax any provision of this policy.