Author: Government recordkeeping

In March 2015, the Department of Treasury and Finance released the Intellectual Property Guidelines for the Victorian Public Sector (IP Guidelines).

These IP Guidelines replace the working draft guidelines released in November 2013 and are designed to assist with implementation of the Whole of Victorian Government Intellectual Property Policy by providing important information on intellectual property (IP) related issues, including for example:

  • making copyright material publicly accessible
  • commercialisation of IP
  • protecting and enforcing IP rights
  • using third party IP.

All agencies, with the exception of local government, are subject to the IP Guidelines.

 

What does this mean for Public Records?

Public records contain a wealth of the state government’s IP and this IP must be carefully managed to ensure appropriate use and access.

Although the new IP guidelines contain new provisions to enhance the Government’s objectives close objectives Definition The specific goals, major products, or major services required to meet the purpose of the strategy. of granting rights to the State’s IP as a public asset and managing third party IP responsibly, it also reinforces the obligations of agencies under the Standards issued by Public Record Office Victoria. This is particularly the case when it comes to disposal close disposal Definition A range of processes associated with implementing appraisal decisions which are documented in disposal authorities or other instruments. and procurement.

 

Disposal of IP

The IP Guidelines advise upon the range of considerations that must be taken into account when determining if it is appropriate to reassign or dispose of IP owned by an agency. However, as noted in the Guidelines, where the disposal concerns IP in public records, this must be done in accordance with PROS 10/13 Disposal Standard and the applicable Retention and Disposal Authority issued under the Public Records Act 1973.

Procurement

Agencies should also be attentive to IP requirements in procurement, especially as applied to outsourcing close outsourcing Definition Engagement of external service providers by government agencies, under a contract or agreement, to perform functions and activities on behalf of government or provide services for government. agreements. Where an outsourcing agreement close agreement Definition Meeting of minds (or an evidence of mutual accord or understanding) between two or more legally competent parties, about their relative duties and rights regarding current or future performance. includes public records, agencies should take steps to ensure record-keeping contract close contract Definition Voluntary, deliberate, and legally enforceable (binding) agreement between two or more competent parties. A contractual relationship is evidenced by(1) an offer, (2) acceptance of the offer, and a (3) valid (legal and valuable) consideration. clauses are included in the agreement. PROS 10/10 G2 Managing Records of Outsourced Activity prescribes that ownership close ownership Definition The state of holding a legal right to property that is the most extensive and absolute property interest in law. Most commonly refers to legal title executed through a legally binding agreement. of IP contained in records that are to be used or transferred to the custody close custody Definition Responsibility for the care of records and archives, usually based on their physical possession. Custody does not necessarily include legal ownership.   of agencies must remain with the government agency.

 

Contact us for more information about how the new IP Guidelines may impact agencies.