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Rule 63:
Intellectual property

Explains how an agency should consider and address new intellectual property in its Notice of Procurement.

  1. If an agency’s procurement of goods, services or works involves the supplier creating new intellectual property, the agency should set out, in its Notice of Procurement, its intentions regarding ownership, licensing, and future commercialisation of that intellectual property.
  2. Cabinet has endorsed specific guidelines for agencies on the ownership and commercialisation of new intellectual property in certain types of procurement. Agencies should take these guidelines into account. The guidelines are:
    1. for procurement of goods, services or works in the context of Information and Communication Technologies (ICT): Guidelines for treatment of intellectual property rights in ICT contracts [PDF, 218 KB], released by the State Services Commission, maintained by the Department of Internal Affairs.
    2. for procurement of goods, services or works in the context of Public Service research contracts: Cabinet guidelines for intellectual property from Public Service research contracts [PDF, 25 KB].
    3. for when releasing copyright works and non-copyright material for re-use by others: New Zealand Government Open Access and Licensing framework (NZGOAL) and the NZGOAL Software Extension for software.

More information on intellectual property

It's important to consider if new intellectual property will arise in a contract and to explicitly set out your expectations about ownership and licensing in your Notice of Procurement. This provides clarity for suppliers at an early stage and potentially reduces expense and time later on negotiating ownership and licensing. Alternatively, you can ask suppliers to state in their responses their assumptions about any anticipated new intellectual property.

Often agencies assume that ownership of new intellectual property in contract deliverables should be owned by government. While there may be circumstances when government wants to own and exploit new intellectual property, there is a trend towards vesting the intellectual property with the party best placed to commercialise it.

Various guidance has been developed to help you decide an appropriate approach.

Ownership options include:

  • the agency owns the new intellectual property and decides to commercialise
  • the agency owns the new intellectual property but licenses the supplier to use and commercialise
  • the supplier owns the new intellectual property but licenses the agency, and all other State Services agencies, to use.

Allowing the supplier to commercialise the new intellectual property encourages innovation and economic development.

Other options include licensing and releasing software as open source. You can find guidance on New Zealand Government Open Access and Licensing framework (NZGOAL)(external link).

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