COMPUTER SOFTWARE INTELLECTUAL PROPERTY
RIGHTS POLICY
1.
PURPOSE
Intellectual Property(IP) is a term used to describe the results of intellectual activity
and creative effort. Intellectual property assets are intangible, and their economic
value exists largely in the set of exclusive rights that an owner has in the asset.
The purpose of this policy is to:
•
Increased awareness among WA Health ICT staff of their responsibilities
in relation to the identification and protection of intellectual property rights;.
•
The establishment of an asset management approach to intellectual
property rights.
•
The adoption of WA Health’s position that intellectual property creation
and commercialisation are ancillary to the core activities and everyday
priorities of WA Health ICT.
2.
SCOPE
2.1 Intellectual Property (or IP) is a broad term for the various rights which the law
gives for the protection of creative effort, and especially for the protection of
economic investment in creative effort. The term intellectual property in the
broadest meaning, include the following:
The emphasis of this policy is with copyright.
COMPUTER SOFTWARE INTELLECTUAL PROPERTY RIGHTS POLICY
Copyright exists as a result of the Copyright Act 1968 (Cth) and protects original
material in the form of literary works (including computer programs), dramatic works,
musical works, artistic works, films, sound recordings, radio and television
broadcasts, and published editions of works (essentially their typographical layout); a
more limited non-copyright protection is also given to certain performances.
This policy applies to all personnel of WA Health (employees, contractors, students,
volunteers and agency personnel) incorporating the following entities:
 Department of Health;
 Metropolitan Health Services;
 WA Country Health Service;
 Peel Health Service.
This policy also applies to external organisations and their personnel who have been
granted access to WA Health Information and Communications Technology (ICT)
infrastructure and services.
This policy must be read in conjunction with the Acceptable Use Policy – Computing
and Communication Facilities, which governs the use of ICT by WA Health
personnel. This and other policies and standards are available at the HIN Intranet
Site.
3.
POLICY
3.1 WA HEALTH ICT will manage intellectual property obligations in ways that
are consistent, transparent and accountable.
3.2 WA HEALTH will ensure that adequate procedures and controls are in
place for the storage, retrieval and disposal of computer software licences.
3.3 Computer software must not be copied without the consent of the
copyright holder except where there are special provisions which cover
areas such as legitimate backup copies and site licences.
3.4 WA HEALTH owns intellectual property created by its employees and
contract personal in the course of their employment.
3.5 Commercialisation of ICT intellectual property is not currently a primary
activity of WA Health ICT and will only be undertaken on a case by case
basis following assessment and instruction at the executive level.
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4.
POLICY DETAILS
4.1 Intellectual Property Rights
Intellectual property is an asset that can be sold, bought, leased and generally dealt
with like other forms of property, ownership is determined by general legal rules.
Computer software is a form of intellectual property and in copyright terms is
classified as a 'literary work'. Computer software is protected from illegal copying
under the provisions of the Copyright Act 1968 as amended. Severe penalties exist
under the legislation for the illegal copying of software both by individuals and
organisations.
A basic premise of contract law is that a contract only binds the parties who execute
the contract. In practical terms this means that if WA Health engages a consultant or
a contractor, this person may engage subcontractors and other staff to provide
support in the creation of the intellectual property. These subcontractors and staff
are not bound by the terms of the contract between WA Health and the principal
contractor. Where an external organisation is contracted to produce software, all
rights on the pre-existing and resulting software should be clearly defined in the
contract.
4.2 Copyright
Copyright protection is free and automatic in Australia and protects the original
expression of ideas, and not the ideas themselves. Australian copyright is
administered by the Attorney-General's Department.
Activities within WA Health which could potentially lead to the creation of copyright
material include:
 writing of articles and conference papers;
 writing of computer software;
 designing a questionnaire or a form;
 writing a manual;
 writing training materials;
 making a multi-media production;
 creating a database.
Copyright arises automatically without any need for registration or other formal steps
and comes into existence when the material is created. The form in which the
material is expressed or embodied is irrelevant, thus, a technical manual written on
paper is protected equally with a technical manual keyed into a computer and stored
and transmitted electronically, for example, as an e-mail communication. Protection
is given under the Copyright Act 1968.
4.2.1 Moral Rights
In the Copyright Amendment (Moral Rights) Act 2000 moral rights were added to the
repertoire of the copyright creator’s rights. These rights are independent of the
author’s economic rights and continue to exist even after transfer of the economic
rights. The moral rights now enacted into Australian law are:
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

The right of an author or artist to be identified with his or her works –
known as the right of attribution; and
The right to object to alteration or other derogatory treatment of the
work that would be prejudicial to the author or artist’s honour or
reputation – known as the right of integrity.
4.3 Software Compliance.
All software used by WA Health has one or more software license agreements
associated with it which must be complied with. These license agreements have
terms and conditions that can restrict the use, copying or modification of the product.
Software Compliance requires a license must be procured for the lawful use of
proprietary software and harsh penalties exist in law for non-compliance. WA Health
ethical standards dictate that software compliance is mandatory and enforceable.
In order to ensure legal compliance with different vendor licensing regulations, WA
Health via the HIN Assets Group maintains a central auditable software asset
register containing information related to each licensed software product loaded on
WA Health computing devices.
To maintain this register and reflect the current situation any changes in software
status within WA Health must be communicated to the HIN Asset Group for
recording. In addition the HIN Assets Group has a number of licensing arrangements
with vendors which enable WA Health to save significant amounts on software
license purchases.
Contact [email protected] to clarify any software license issues.
4.3.1 Open-Source Software, Shareware and Freeware
WA Health computing workstation infrastructure is a controlled environment and WA
Health does not encourage the use of open source software, shareware or freeware
without approval from local Information Technology Management or the Health
Infrastructure Network (HIN). Where use of such software is accepted, personnel
must comply with any conditions required by the copyright owner, licensee or
software distributor.
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COMPUTER SOFTWARE INTELLECTUAL PROPERTY RIGHTS POLICY
4.4 Conflict of Interest
Wikipedia define conflict of interest as: “a conflict of interest is a set of circumstances
that creates a risk that professional judgment or actions regarding a primary interest
will be unduly influenced by a secondary interest.” 1
primary interest refers to the principal goals of the profession or activity, such as the
protection of clients, the health of patients, the integrity of research, and the duties of
public office.
Secondary interest includes not only financial gain but also such motives as the
desire for professional advancement and the wish to do favors for family and friends,
but conflict of interest rules usually focus on financial relationships because they are
relatively more objective, tangible, and quantifiable. The secondary interests are not
treated as wrong in themselves, but become objectionable when they are believed to
have greater weight than the primary interests.
The conflict in a conflict of interest exists whether or not a particular individual is
actually influenced by the secondary interest. It exists if the circumstances are
reasonably believed (on the basis of past experience and objective evidence) to
create a risk that decisions may be unduly influenced by secondary interests.
Regulating conflict of interest in government is one of the aims of political ethics. The
WA Health Code of Conduct describe the standards of behaviour expected of people
working in the public health sector. The Code of Conduct expressly states that
employees of WA Health will:
“Disclose any personal or professional matters that may lead to actual or
perceived conflicts of interest”.
WA Health has a policy to assist in addressing conflict of interest See OD 0264/10
WA HEALTH MANAGING CONFLICT OF INTEREST POLICY AND GUIDELINES .
5.
IMPLEMENTATION
It is the responsibility of all WA Health personnel to observe and comply with this
Policy and other associated policies, guidelines, standards and procedures.
Intellectual Property (IP) rights, particularly copyright, apply to software and it is
essential that any ambiguity about IP rights is addressed when software is
purchased, installed, developed or sold.
Difficult questions may arise as to the existence and terms of the relevant contract of
employment and whether activity which generates intellectual property was carried
out "in the course of employment". A good starting point is to clarify this in a letter of
appointment, where there should be a specific reference to IP ownership and
management. Prospective employees may need to seek independent advice so they
understand the effect of making an agreement with WA Health as regards to
ownership of intellectual property.
1
1.^ Lo and Field (2009). The definition originally appeared in Thompson (1993).
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COMPUTER SOFTWARE INTELLECTUAL PROPERTY RIGHTS POLICY
Factors supporting WA Health’s claim to ownership include:
1.
2.
3.
4.
Intellectual property created in the course of employment;
Substantial use of WA Health resources and/or services;
Use of pre-existing intellectual property owned by WA Health;
Use of WA Health funding or funding obtained by WA Health.
Therefore, WA Health entities should not encourage staff to develop, distribute or
support software for private purposes during their working hours or from government
premises using government resources.
6.
BACKGROUND
There are a number of issues which need to be considered by WA Health staff when
purchasing, developing or marketing software. The primary issues raised in this
policy come under the Copyright Act 1968 which is one of a number of Acts which
apply to Intellectual Property. Severe penalties exist under the Act for the illegal
copying of software both by individuals and organisations. Therefore each and every
software installation must be covered by an appropriate licence or right of use.
Any extracts from documents or legislation used in this policy are meant to highlight
certain issues only, and the latest versions of these documents themselves should be
read to place these quotations within context.
7.
RELEVANT LEGISLATION AND GOVERNMENT POLICIES
(WA Acts are available at the State Law Publisher website; Commonwealth Acts are
available at the Australian Government ComLaw website)
WA Department of Commerce For more information refer to the following:
Government Intellectual Property Policy and Best Practice Guidelines (PDF
1.1 MB)
Review of the Western Australian Government Intellectual Property Policy
2012 (PDF 777 kb)
Copyright Act 1968 (Cth)
Designs Act 2003 (Cth)
Patents Act 1990 (Cth)
Trademarks Act 1995(Cth)
Integrity Ethics and Probity, State Supply Commission WA
8.
ASSOCIATED DEPARTMENT OF HEALTH POLICIES, STANDARDS
AND GUIDELINES
WA Health ICT policies are available on the HIN Intranet Site.
 Acceptable Use Policy – Computing and Communication Facilities;
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
9.
Software License Management Policy.
INTERNATIONAL STANDARDS / SPECIFICATIONS
10. REFERENCES
IP Australia homepage – useful simple summary of many issues relevant to
intellectual property .
Australian Government Attorney Generals Copyright Information
11. DEFINITIONS
Term
Conflict of Interest
Intellectual Property
Intellectual Property in
a broad sense
includes:
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Definition
Involves a situation arising between the performance of a
public duty and private or personal interests.
Intellectual property refers to the rights granted by law in
relation to the result of creative human effort and economic
investment in the creative effort. Intellectual property rights
are rights to:
• The protection of intellectual activity or the protection of
ideas and information that have been created;
• Control the distribution of such activity, ideas or
information;
• Receive benefits from such activities, ideas or information
by way of exploitation and commercialisation; and
• Recognition and acknowledgement.
• Inventions and patents granted in respect of such
inventions and applications of such patents;
• Unpatented know-how which comprise an invention or a
way of doing something which is not public knowledge;
• Confidential information and trade secrets;
• Registered and unregistered designs and applications for
registered designs;
• Copyright;
• Circuit layout rights;
• Registered and unregistered trademarks and applications
for registration of trademarks;
• Plant variety rights;
• All other rights resulting from intellectual activity in the
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scientific, industrial, literary or artistic fields; and
• Any contractual rights to use or exploit any of these rights.
To license intellectual property means to grant permission to
another party to use the intellectual property rights
associated with a particular item. As the extent and scope of
the license will be in accordance with the licensing
agreement, the licensee’s use of the intellectual property
rights may be either quite limited or liberal. Licensing in the
context of intellectual property often has a finite time frame
and there may be a requirement to carry out all research and
development of the intellectual property within the period of
the license.
Moral rights are the rights individual creators have in relation
to copyright works. Moral rights are separate from the
economic rights of the copyright owner. The creator of the
work, who holds moral rights, is not necessarily the owner of
copyright in the work.
License
Moral Rights
12. VERSION CONTROL
Current
Version
Effective Date:
Operational
Directive No:
SHEF ICT Approved
Date:
Next Review Date:
3.0
10 November
2013
OD: 0481/13
21 October 2013
January 2016
Responsible Group:
Enquiries Contact
Health Information Network - Strategy
Manager ICT Policy
Version Notes
1991 Original Development
2007 General Maintenance.
2013 General Maintenance and conversion from Guideline into a Policy.
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