1. Purpose of policy
1.1 USC seeks to be a driver of capacity building in the Sunshine Coast and broader region and encourages its staff and students to actively pursue cutting edge research, and to generate and share knowledge that will provide social, cultural, and economic benefits for USC and for the broader community.
1.2 USC is committed to:
(a) preserving academic values and expectations
(b) providing an environment for staff and students where scholarship, entrepreneurship and innovation can flourish
(c) protecting the interests of staff, students and the university arising from the creation, protection and commercialisation of intellectual property
(d) undertaking its business operations and commercialisation activities in an ethically and socially responsible manner
(e) maximising social, cultural, and economic benefits for USC and for the broader community
(f) enabling open access to its scholarly output, including research publications and research data collections
(g) valuing and respecting external partnerships, and
(h) delivering innovative, high-quality research with real impact.
1.3 USC acknowledges that it is accountable to the community for its research and commercialisation activities, and has a general responsibility to ensure that these activities have a positive impact on the community.
1.4 Appropriate management of USC’s intellectual property by a strong intellectual property protection regime facilitates the best delivery of these benefits to USC, its staff and students, and to the wider community. This policy and the associated procedures are intended to address the ownership and management of intellectual property arising in connection with the conduct of USC’s activities.
2. Policy scope and application
The policy applies to all staff, students and invited scholars of the University of the Sunshine Coast.
Please refer to the Glossary of Terms for policies and procedures. Terms and definitions identified below are specific to this policy and associated procedures and are critical to its effectiveness:
Commercialisation means to exploit commercially and includes:
(a) the exercise of all the rights granted to the holder of intellectual property rights, including where permitted the right to license or assign those rights
(b) in relation to a product, kit, apparatus, substance, documentation, software or information resource (or any part of such materials) – to make, distribute, market, sell, publish, hire out, lease, supply, or otherwise dispose of it and
(c) 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 expenses means the expenses incurred by USC in the production, development, protection, marketing and commercialisation of USC intellectual property, and includes:
(a) patenting and other intellectual property protection expenses
(b) legal expenses incurred on the commercialisation project (and not just on the particular transaction giving rise to the revenue)
(c) external professional expenses incurred on the commercialisation project (and not just on the particular transaction giving rise to the revenue), which may include:
(i) accountants’ expenses for financial and taxation modelling
(ii) valuers’ expenses, and
(iii) other consultants’ expenses (e.g. commercialisation consultants)
(d) costs associated with the development of the intellectual property including proof of concept studies, prototype development, marketing studies and business planning
(e) costs associated with the establishment of a start-up company (e.g., incorporation, legal, taxation and advisory costs)
(f) travel and accommodation expenses incurred on the commercialisation project (and not just on the particular transaction giving rise to the revenue) by any person (whether staff member, or an external professional)
(g) legal costs and related expenses incurred to commence or defend infringement proceedings
(h) taxes, duties or any other government levies incurred by USC, in respect of the commercialisation project or revenue,
and does not include:
(i) USC’s administration expenses
(j) the cost of undertaking research on the commercialisation project, unless such research is funded by USC.
The determination of whether particular expenses not listed above are considered commercialisation expenses will be made by the Deputy Vice Chancellor (Research and Innovation).
Commercialisation revenue means the gross cash revenue received by USC from the commercialisation of USC intellectual property and includes:
(a) royalties upon sales by a licensee
(b) royalties from sub-licence fees received from a licensee
(c) lump sum licence fees (except where those fees are required to be used to subscribe for equity in a start-up company)
(d) proceeds from the assignment of USC intellectual property
(e) proceeds of sale of the USC intellectual property (where a sale occurs)
(f) signing fees
(g) milestone payments
(h) minimum annual payments
(i) reimbursement of patent prosecution and maintenance expenses
(j) dividends upon shares owned by USC in a start-up company to which it grants a licence
(k) proceeds of sale of shares owned by USC in a start-up company to which it grants a licence
(l) damages from infringement proceedings
(m) any income received from the exploitation of USC intellectual property
and does not include:
(n) payments pursuant to a research or consulting agreement.
The determination of whether particular revenue not listed above is considered commercialisation revenue will be made by the Deputy Vice Chancellor (Research and Innovation).
Creator means a staff member, student or invited scholar who creates USC intellectual property, including a staff member, student or invited scholar who:
(a) in the case of a patentable invention subject to the Patents Act 1990 is an inventor
(b) in the case of a copyright work or similar subject matter to the Copyright Act 1968 is an author
(c) 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
(d) in the case of designs registrable under the Designs Act 2003 is a designer
(e) in the case of plant breeder’s rights, under the Plant Breeder's Rights Act 1994 is a principal breeder
(f) in the case of circuit layouts, under the Circuit Layouts Act 1999 is a designer, and
(g) in the case of trade secrets and know how is a creator of that body of knowledge.
Indigenous knowledges means Indigenous peoples' rights to their heritage, consisting of intangible and tangible aspects of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous peoples and passed on by them as part of expressing their cultural identity.
Indigenous peoples means:
(a) people of Aboriginal or Torres Strait Island descent who identify as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives, and
(b) those peoples having a set of specific rights based on their historical ties to a particular region inside or outside Australia, and their cultural or historical distinctiveness from other populations.
Intellectual property refers to all present and future rights conferred by statute, common law or equity in any jurisdiction which protect intellectual and creative effort recognised by law as defined by Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967 and includes:
(a) patents for new or improved products or processes
(b) trade marks for letters, words, phrases, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of these, to distinguish the goods and services of one trader from those of another
(c) designs for the shape or appearance of manufactured goods
(d) copyright for original material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs
(e) circuit layout rights for the three-dimensional configuration of electronic circuits in integrated circuit products or layout designs
(f) plant breeder's rights for new plant varieties
(g) inventions and trade secrets, and
(h) applications for any of the foregoing and any right to have information kept confidential, and other results of intellectual activity in the industrial, commercial, scientific or literary or artistic fields.
Invited scholar means any person other than a staff member or student who takes part in any research or scholarly activity at USC pursuant to which that person creates intellectual property, and includes a person who holds an adjunct, conjoint, honorary, voluntary, honorary role or other similar appointment made in accordance with the relevant university policies and procedures.
Moral rights means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future under the Copyright Act 1968 (Cth) or under the law of a country other than Australia which is given effect in Australia.
Net commercialisation revenue means commercialisation revenue less commercialisation expenses in relation to a particular item or related items of intellectual property.
Open content licensing refers to the licensing of a copyright work or other subject matter under a system which preserves the creator’s intellectual property rights whilst giving permission in advance for the material to be used in certain defined ways, subject to certain defined conditions. At a minimum, such licences provide the user with the right to reproduce, copy and communicate the content on prescribed terms or conditions. Examples of open content licensing systems include the Creative Commons licences, the GNU Public Document Licence and the AEShareNet licences.
Pre-existing intellectual property means intellectual property that is developed and is owned by a staff member, student or invited scholar prior to the date of their employment, enrolment or engagement with the university.
Right to publish in relation to scholarly works means the right to publish a work as referred to in the Copyright Act 1968 (Cth).
Scholarly works means any article, book or book chapter(s), manual, or creative writing or any digital or electronic version of these that contains material written by staff, student or invited scholar, but does not include work that is a computer program, teaching materials, or administration material or work produced at the request of a third party under contract with USC.
Staff and staff member means an employee of USC at the time that person creates intellectual property and includes academic staff and professional staff whether employed on a full-time, fractional or casual basis.
Staff materials means teaching materials in which the intellectual property is owned by staff, or licensed by staff to USC.
Teaching materials means lecture notes, course notes, slides, presentations, overheads, course assignments, examination papers, answer guidelines, tutorial questions, handbooks, spreadsheets, course outlines, course reading lists, online education resources, computer programs solely used for teaching purposes, drawings and diagrams, maps, photographs, broadcasts, films and all other materials created, developed, used or supplied for the purpose of learning and teaching at USC, but does not include work that are scholarly works or work produced at the request of a third party under contract with USC.
University project means a program of work or research which has been funded internally with substantial resources, including but not limited to staff salary, USC infrastructure, USC equipment, research consumables and in-kind contributions.
USC intellectual property means intellectual property owned by the University of the Sunshine Coast, either by virtue of being created by staff in the course of their employment with USC or assigned by students and invited scholars to USC.
USC teaching materials means teaching materials created by staff in the course of their employment with USC.
4. Ownership of intellectual property generated by staff
4.1 General - USC ownership of intellectual property
4.1.1 In accordance with the provisions on ownership of intellectual property in USC's terms of employment with staff, USC is the owner of intellectual property created by staff members in the course of their employment (subject to the provisions regarding the right to publish scholarly works below in clause 4.3.1).
4.1.2 Intellectual property created in pursuance of or incidental to the performance of a staff member’s employment contract is considered to have been created in the course of employment whether or not a staff member’s express duties include a duty to develop intellectual property. USC does not own intellectual property created by staff members outside the course of their employment. USC’s ownership of USC intellectual property applies to all staff.
4.1.3 This ownership exists as a matter of law, and does not require any further documentation from staff members. However, staff who are creators may be required to formally sign documents to more fully record USC’s ownership of USC intellectual property, for example, to enable patent applications to be made. At the request of USC, creators will:
(a) execute, in a timely manner, all such confirmations of assignment and ownership, and other documentation necessary to give effect to the intellectual property ownership and use provisions set out in this policy, and
(b) provide other assistance as reasonably requested, such as providing evidence as to date of creation, assisting with intellectual property protection procedures, and assistance with enforcement of intellectual property.
4.1.4 Additional provisions regarding ownership and use of intellectual property by staff, students and invited scholars are provided for in the sections below.
4.2 Staff bringing pre-existing intellectual property to USC
4.2.1 USC does not assert ownership over pre-existing intellectual property.
4.2.2 Staff who bring pre-existing intellectual property to USC to be used in the course of their duties or otherwise, need to provide evidence of ownership to USC when using that pre-existing intellectual property for teaching, research, scholarship or in relation to commercialisation. This ensures the staff member’s ownership and contribution to the scope of knowledge held at USC is recognised and that there is no dispute as to prior encumbrances over that pre-existing intellectual property.
4.2.3 Prior to commencement of employment with USC, or as soon as practical after employment or engagement, staff should provide:
- an inventory of that pre-existing intellectual property; and
- all documents relating to the ownership of the pre-existing intellectual property, including any contracts, licensing agreements, policies in place at previous employers, or other relevant documents.
4.2.4 USC’s access to staff materials is necessary to enable USC to deliver the courses in which staff materials are used. If staff materials are used in the course of the staff member’s employment at USC, the staff member must grant a perpetual, worldwide, royalty-free, non-exclusive licence to USC to use staff materials for all purposes connected with delivery of courses and teaching programs by USC, even after the staff member ceases to be employed by USC.
4.3 Ownership of copyright in scholarly works
4.3.1 USC does not assert ownership of the right to publish scholarly works generated by staff members, except where the work is specially commissioned by USC or pursuant to another agreement, in which case that agreement may have specific intellectual property provisions relating to scholarly works that is inconsistent with staff members having an ownership interest.
4.3.2 If the right to publish scholarly works does not fall within the exceptions above, and a staff member owns the right to publish scholarly works, that staff member hereby grants a perpetual, irrevocable, worldwide, royalty-free, non-exclusive licence to the right to publish scholarly works in favour of USC for teaching, research and commercialisation purposes and to reproduce, publish and communicate that work in USC’s library and online via USC’s institutional repository USC Research Bank.
4.3.3 If requested, USC will sign documents to record the staff member’s ownership of the right of publication of the copyright in a scholarly work and USC’s non-exclusive licence to that work. Any subsequent publication agreement or assignment of the right to publish the scholarly work entered into by the creator, will be subject to the terms of the pre-existing non-exclusive licence referred to in this section.
4.4 Intellectual property in USC teaching materials
4.4.1 USC ownership of the intellectual property in USC teaching materials ensures USC has the unrestricted ability to use these teaching materials for its teaching, research and training responsibilities.
4.4.2 USC consents to the use of USC teaching materials by staff to fulfil their teaching, research and training responsibilities at USC. This right does not include any use for commercial purposes nor does it involve a transfer of ownership of USC intellectual property.
4.4.3 In the absence of an obligation of confidentiality or separate legal constraint, USC recognises that staff may personally use knowledge they have developed in the course of their employment at USC, once that employment ceases. Upon request, USC agrees to grant to the creator of teaching materials a perpetual, personal, royalty free, non-exclusive, non-transferable licence to use such teaching materials generated by that creator for teaching, educational and research purposes at other educational institutions. The creator may not sublicense the teaching materials to others to generate royalties, license fees or other pecuniary benefits.
5. Ownership of intellectual property generated by students
5.1 In accordance with general law principles, students personally own the intellectual property of which they are the creator.
5.2 However, there are some exceptional circumstances where, in order to participate, or continue to participate in certain activities, students may be requested to assign to USC their interest in the intellectual property they create and transfer data and other information, in particular, where:
- the student participates in a university project
- the activities are externally funded, or
- the activities have contractual obligations with third parties, or
- the activities have clear commercialisation potential or objectives.
5.3 It is intended that requests for students to assign their intellectual property will be done where necessary to enable USC to meet its legal obligations to industry partners, or to achieve the objective of deriving appropriate benefits from innovation at USC by commercialising intellectual property.
5.4 The terms of any assignment of intellectual property by a student will be agreed with the student. In general, the student will:
(a) share in net commercialisation revenues along with all other creators
(b) retain copyright in the student’s thesis
(c) not be unreasonably impeded in submitting a thesis for examination and completing requirements for the award of a degree
(d) observe obligations of confidentiality in relation to the project, and
(e) consent to the student’s thesis and other scholarly works being reproduced and communicated online via USC's institutional repository USC Research Bank.
5.5 Intellectual property matters should be clearly documented at the commencement of a higher degree by research program. Responsibility for identifying circumstances when the assignment of student intellectual property may be appropriate rests with the research thesis supervisor and the relevant Head of School.
5.6 Where a student is also a staff member, then section four (4) takes precedence over this section where the subject matter of the student’s study is similar to the subject matter of the work for which the person is employed. Any potential conflicts of interest should be clearly identified and documented prior to commencing a dual role, i.e. when a student enters employment with USC, or when an employee enrols as a student, whether at USC or another institution.
5.7 For further details, refer to the Intellectual Property: Student IP – Procedures.
6. Ownership of intellectual property generated by invited scholars
6.1 Ownership and rights relating to intellectual property brought to USC by an invited scholar must be resolved before any activity commences at USC. This may necessitate negotiation between USC and the owner of the intellectual property such as the invited scholar’s employer.
6.2 For further details, refer to the Adjunct and Visiting Appointments - Managerial Policy.
7. Indigenous knowledge rights
Where the creation of USC intellectual property involves the property of Indigenous peoples and/or the use of Indigenous knowledges, USC will take all reasonable steps to consult with the relevant Indigenous peoples and groups to ensure that any decisions taken on the protection, development and commercialisation of that intellectual property conforms with the relevant Indigenous protocols and ethical guidelines. USC does not assert ownership over Indigenous knowledges.
8. Transfer of rights to creators
8.1 Where USC decides that it will not further pursue commercialisation of USC intellectual property, USC may decide to license or assign USC intellectual property to creators where it does not infringe a legal commitment to another party.
8.2 This decision to not further pursue commercialisation will be taken after assessing the commercialisation prospects for the intellectual property. This decision may be made only where responsible officer referred to in section nine (9):
(a) is satisfied that there has been full disclosure by the creators regarding the relevant intellectual property
(b) where the creators have fully cooperated with the assessment of the intellectual property by USC, and
(c) where the creators have fully complied with their obligations under this policy and the relevant codes of conduct.
8.3 In general, the transfer of rights to creators will not be considered where:
(a) a determination is made that the intellectual property requires further work before a proper assessment of commercialisation prospects can be made
(b) where there are significant negative impacts on future USC research activities or the interests of other creators and/or contributors, or
(c) where it is not in the best interests of USC to do so in the view of the responsible officer referred to in section nine (9).
8.4 USC may impose a condition requiring the payment of a royalty to USC by the creators in the event of future successful commercialisation outcomes.
8.5 For further details, refer to the Intellectual Property: Transfer of Rights to Creators – Procedures.
9. Commercialisation of intellectual property
Commercialisation of USC teaching materials
9.1 All commercialisation of USC teaching materials will be done by USC through the Office of the Deputy Vice-Chancellor (Academic) and the relevant Head of School. Any distribution to contributors from net commercialisation revenue received from commercialisation of teaching materials will be determined by the Deputy Vice-Chancellor (Academic).
Commercialisation of intellectual property derived from research
9.2 All commercialisation of USC intellectual property derived from research will be conducted by USC through the Office of Research as determined by the Deputy Vice-Chancellor (Research and Innovation).
Commercialisation of intellectual property other than USC teaching materials and that derived from research
9.3 All commercialisation of USC intellectual property other than USC teaching materials and that derived from research will be conducted by USC through the Office of the Chief Operating Officer in consultation with the relevant Head of School. Revenue received from commercialisation of intellectual property other than USC teaching materials and that derived from research will be determined by the Chief Operating Officer.
9.4 Without limitation to USC's right as owner, USC may licence, assign or otherwise encumber its rights, title and interests in intellectual property owned by it to third parties at its sole discretion.
9.5 For further details of commercialisation of intellectual property derived from research, refer to the Intellectual Property: Commercialisation – Procedures.
10. Commercialisation revenue distribution
10.1 As a general rule, net commercialisation revenue (excluding that derived from the commercialisation of teaching materials and intellectual property not derived from research) will be distributed in the following manner:
(a) one half (50%) to all the creators amongst them
(b) one quarter (25%) to the creators’ cost centre, and
(c) one quarter (25%) to USC central funds.
10.2 Net commercialisation revenues will be distributed to creators according to the proportionate contribution made by them to the intellectual property creation. If necessary, in cases of uncertainty or if there is dispute between creators, the Deputy Vice-Chancellor (Research and Innovation) will determine proportionate contributions for the purposes of net revenue distribution to creators.
10.3 Where creators are staff employed by a cost centre, the distribution of net commercialisation revenue under section 10.1 (b) shall be determined by the senior executive responsible for that cost centre (with the cost centre determined at the time that the intellectual property was created). In the case where there are several creators who are employed by different organisational areas, distribution to relevant schools will be made in the same proportions as apply to creators. At its discretion, the school may apply the commercialisation revenue to funding further research by the creator.
10.4 Subject to any existing agreements regarding revenue distributions, this policy will apply in relation to all net commercialisation revenue received by USC after this policy comes into effect, even though commercialisation revenue may have been received and distributed before this policy comes into effect. Distribution to a creator under this policy shall not be affected by the death, resignation or retirement of the creator.
10.5 For further details, refer to the Intellectual Property: Commercialisation Revenue – Procedures.
11. Moral rights
11.1 Moral rights apply to all works, except films, in existence on 21 December 2000 and which are still protected by copyright, and to all works including films created after that date.
11.2 The moral rights of the creator of works are:
(a) the right of attribution of authorship in respect of the work
(b) the right not to have authorship of the work falsely attributed, and
(c) the right of integrity of authorship in respect of the work.
11.3 In summary:
(a) the right of attribution is a right to be identified as the author of a work
(b) false attribution means to associate someone else's name with a work in a way that falsely implies that person is the author of the work and
(c) the right of integrity of authorship is the right not to have the work subjected to derogatory treatment, such as the doing of anything that results in a material distortion, mutilation of, or alteration to, the work that is prejudicial to the author's honour or reputation.
11.4 In accordance with the provisions in USC's standard terms of employment with staff, staff have consented to and authorised USC to perform, and refrain from performing, all acts which might otherwise amount to an act or omission in breach of some or all of your moral rights in respect of the intellectual property rights.
11.5 In compliance with the Australian Code for the Responsible Conduct of Research, USC will take reasonable steps to prevent an author’s moral rights in clause 11.2(c) from being infringed, but may, on appropriate occasions, ask creators to consent to certain uses of their work, where moral rights may be affected.
12. Effect of this policy on pre-existing arrangements
Despite any contrary provision in this policy, all existing legally binding contracts, deeds and agreements entered into by USC prior to the effective start date will remain in full force and effect. Their terms will prevail to the extent that there is an inconsistency with this policy.
13. Dispute resolution
13.1 Determinations on matters relating to this policy and associated procedures are made by the Deputy Vice-Chancellor (Research and Innovation).
13.2 To the extent of any inconsistency between associated procedures and this policy, this policy will prevail.
13.3 A staff member who does not agree with a determination, action or inaction on a matter relating to this policy and associated procedures must in the first instance notify the Deputy Vice-Chancellor (Research and Innovation) in writing of the dispute. The Deputy Vice-Chancellor (Research and Innovation) will respond to that notice promptly.
13.4 If the concerned staff member is dissatisfied with the reply (or if the reply is not timely) the person should advise the Deputy Vice-Chancellor (Academic) in writing of the unresolved dispute.
13.5 The Deputy Vice-Chancellor (Academic) (or their nominee) may meet with the concerned staff member and the Deputy Vice-Chancellor (Research and Innovation) within five working days from the date of being advised in writing of the ongoing dispute. Prior to the meeting, the Vice-Chancellor and President shall advise the person of their right to be accompanied by a support person at that meeting. The support person excludes a person who is currently practising as a solicitor or barrister.
13.6 The Deputy Vice-Chancellor (Academic) (or their nominee) may seek assistance in investigating a dispute, as appropriate. That advice may be sought from USC on matters relating to exploitation or commercialisation of USC intellectual property or may determine it is appropriate to appoint a panel of up to three people, to report on matters raised by the dispute. This panel will be composed of such persons, from within and external to USC, who by reason of their collective skills and expertise, are able to consider the specific issue raised, and provide advice to the Deputy Vice-Chancellor (Academic) (or their nominee), as applicable.
13.7 The Deputy Vice-Chancellor (Academic) shall respond to the written notice of dispute within 30 days of receipt of the notice or shall inform the person of an alternative timeline for resolution. The final response of the Deputy Vice-Chancellor (Academic) to the written notice of dispute shall conclude the matter.
13.8 A student who does not agree with a determination, action or inaction on a matter relating to this policy and associated procedures must follow the grievance procedures under the Student Grievance Resolution – Governing Policy, if the student wishes to pursue a grievance further.
14. Breaches of the policy
14.1 Any breach of this policy or associated procedures by a staff member may be considered a breach of the Staff Code of Conduct – Governing Policy and/or Responsible Research Conduct – Governing Policy and may be subject to disciplinary action in accordance with USC’s provisions on disciplinary action for misconduct and serious misconduct set out in those policies and the relevant Enterprise Agreement.
14.2 Any breach of the policy or associated procedures by a student may be considered a breach of the Student Conduct – Governing Policy and/or Student Academic Integrity – Governing Policy and may be subject to disciplinary action under those policies.
15. Conflict of interest
The management of any potential conflict of interest shall be undertaken in accordance with the Conflict of Interest - Governing Policy.
16. Roles and responsibilities
The following authorities/responsibilities are delegated under this policy: