1. Introduction

1.1.   Intellectual property [1] is any creation of the human mind of which the ownership or right to use may be legally protected by instruments such as patent, copyright, plant variety protection, trademark and trade secret.[2]

1.2.   Intellectual property rights are the right to restrict others from using protected ideas or inventions.  Intellectual property rights are neither a license to commercialise nor an indicator of potential financial success.  Rather they serve as an instrument to prevent others from using the intellectual property without the owner’s consent.

1.3.   The Tertiary Education Union Te Hautū Kahurangi o Aotearoa (TEU) has members with considerable entrepreneurial interests, as well as those who need to maintain distance from the potential impact of either political or commercial interests on their work.  This policy seeks to promote an environment in which both of these legitimate activities can be pursued with limited or no conflict, and in a way that properly recognises and rewards the seminal contribution of the employee to the development of any intellectual property.

1.4 In seeking to safeguard our members’ interests, we also note that the general public should be able to benefit from new knowledge or discoveries, in an environment that supports open sharing of information and that recognises the often collaborative nature of research, intellectual pursuits and creativity.

2. Copyright of material produced during the course of employment

2.1.   The TEU believes that employees should retain copyright of any original materials, including course materials[3], created by them in the course of fulfilling their employment obligations.  The TEU acknowledges that an employee’s right to control the use of a piece of work must be balanced with the ability for an employer to continue to provide the information as part of institutional academic programmes.  However vesting full copyright with an individual employee does not preclude an employer using course materials for programmes run by the institution during the period of the employee’s employment, provided that use of the work and any changes to it are agreed by the author/originator.

2.2.   Maintaining control over their work is an incentive for employees to continue to grow and develop that work.  As well, it enables their intellectual property to be appropriately safeguarded, particularly in regards to ensuring kaitiakitanga of the work in their relations with iwi/hapū/whānau/rōpū or other groups or communities. Additionally an employee should have the right to transfer their ‘knowledge’ to another employer in the future.

2.3.   The TEU believes that employees should be able to claim full copyright in perpetuity over work they produce during the course of their employment, even if the work is developed in the employer’s time.  This ensures that the work is protected against inappropriate use during and beyond the lifetime of the author.

3. The concept of ‘ownership’

3.1.   The TEU understands that ownership of intellectual property rights means having the maximum number of legal entitlements to control the use of the property.  This includes the right to prevent others from commercialising the property, but not the right to commercialise.

3.2.   We also acknowledge that ‘ownership’ is a problematic concept as it conjures up notions of individual or exclusive ownership.  This does not necessarily fit well with te āo Māori and other worldviews.  This we believe supports a position that an employee (or whānau, hapū, iwi, rōpū) retain copyright control over cultural and intellectual property, rather than the institution or employer.

3.3.   In the case of an employee obtaining permission from whānau/hapū/iwi/rōpū to use cultural or intellectual property, ownership remains with the whānau/hapū/iwi/rōpū.

3.4.   When a group of employees develop resources, undertake research, or otherwise create original material, the group as a whole retains copyright control over its intellectual property.  No one individual should agree to amendment of the work without the consent of all other members of the group.

4. Patents and commercial applications

4.1.   Patents are used to protect an original invention, often as a precursor to exploring commerical applications of it.  Unlike the copyright protections afforded to a written work or other published material, inventions or discoveries do not receive formal protection until they are patented.

4.2.   Patents can be the subject of dispute between employees and employers.  The criteria for obtaining a patent on an invention are different from those applied to copyright.  The costs of obtaining patents are generally much higher, and the complexity of many inventions frequently causes them to be legitimately claimed by more than one individual.

4.3.   The TEU believes that commercial activities that owe part or all of their profitability to public resources accessed through public tertiary education institution should return a portion of the profits back to the public, usually via the institution.

4.4.   Therefore when work that may have possibilities for commercial use is produced during the course of employment, the employee/s and the employer will enter into an agreement describing the obligations of the parties, and the division of any income and expenditure.  Agreement needs to be reached concerning patenting the invention, the possible use of it, and sharing of profits (if any) obtained from this between employee/s and the employer.  The general agreement and process should be recorded, preferably in the applicable collective agreement.

4.5.   In a case where an employee develops a patentable invention in their own time with their own resources, then clearly ownership rests with that person.

As passed by Conference 9 November 2010

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[1] The current legal position: An employer owns the intellectual property of work produced by an employee if it is produced in the course of employment (Copyright Act 1994), unless there is agreement to do otherwise.  Within the tertiary education sector, the issue of ownership of intellectual property is usually characterised by quite complex arrangements and policies governing the ownership of it, and the sharing of any possible profits.

[2] Specific reference will be made to only two instruments: copyright and patents.  These are probably the two most common instruments encountered by employees in tertiary education institutions.

[3] Course materials include all published materials used in the provision of lectures, tutorials, seminars, workshops, field classes, laboratory classes and other teaching activities conducted by the institution.  They may include recordings made of lectures or other presentations, published overhead transparencies, slides, photographs, maps, diagrams, handbooks, manuals, course outlines, promotional and advertising materials and multi-media items.