Data Licensing and Copyright Guideline

 

1 Introduction

The approach to data copyright and licensing within Main Roads has in the past been ad hoc with different responsibility areas applying their own interpretation on how the two are applied in respect to digital information.

Historically this approach met the needs of the organisation in what was then a developing technology, where predominantly hard copy information was supplied that in most cases had sufficient detail to meet the requirements of the data custodian.

However the advances in digital data technology now sees virtually all data supplied by, or captured for, Main Roads in one digital form or another with limited scope to include ownership and conditions of use in the data.

These guidelines have been developed to assist in addressing the issue and application of copyright and licensing of digital data. It is planned to develop a Main Roads policy to standardise their application throughout Main Roads which will be endorsed by the Executive Director Technology and Environment and then referred to the Corporate Executive for approval.

2 Application

Under no circumstances should individual agreements be combined and edited to form a new agreement.

The application of licensing and copyright agreements can be defined to those that apply directly to Main Roads contracts and those that apply when obtaining or supplying digital or hard copy information externally to Main Roads.

The agreements detailed below have been developed through consultation with Main Roads personnel and in the case of the external agreements with other government departments. If certain sections of an agreement are not relevant to a particular project they can be struck through (using font format) but should remain in the document.

3 Copyright and Intellectual Property

When disseminating information to either government agencies or the private sector the application of copyright and intellectual property can be varied and inconsistent. The consequences of an inconsistent approach, is that, the infringement of copyright is likely to lead to litigation or a breach of privacy or confidentiality and could cause significant public concern. Also competition between agencies in supplying non custodial information may be an inappropriate use of public funds.

The Copyright Act doesn't provide an acceptable level of control over the uses to which information may be used. Hence, when supplying information, an agreement must be established with the client that sets out specific terms and conditions under which the use of the information is to be permitted. This is especially important where computer based material is involved. Clients or licensees should not be permitted to provide copies of the information to third parties unless explicitly permitted to do so by the licence agreement. The agreements below specifically state that the recipient has a 'licence-to-use' to use transferred information. This is to highlight that the ownership of government information remains with the licensor.

"Marketing of Government Land Information" is a document developed by WALIS (on behalf of government) through consultation with government agencies which discusses further the issues of copyright, privacy, confidentiality and marketing of information by government agencies. This document is currently being reviewed for implementation.

4 License Agreements for Main Roads Contracts

• To protect against litigation resulting from the inappropriate use of Main Roads data assets and to protect ownership of information acquired on behalf of Main Roads, all consultants commissioned to undertake specific works: 
  Must acknowledge their liability in using supplied information.
• Assign copyright to Main Roads in respect to all information supplied, captured or developed in meeting the requirements of a specified project.

This is to ensure not only the protection of Main Roads legal responsibilities but also where consultants have been contracted to carry out the specified works, the consultants cannot receive ongoing commercial benefit by continued use of information without the approval of Main Roads.

To assist in meeting the above, the following agreements have been developed and should be used for all contracts Main Roads contracts:

• Data Licensing Agreement For The Transfer And Use Of Digital Information acquired From Main Roads Western Australia For A Specified Project
• Assignment Of Copyright Of Digital Information Prepared For Main Roads Western Australia For A Specified Project 

5 License Agreements for Supply or Use by an External Agency

5.1 Purpose

These licensing agreements are designed to provide a non-exclusive license to use government information for a specific purpose and subject to a set of conditions. They are designed to protect: The information from misuse when it is transferred to others.

• Government's interest in its information asset.
• Privacy and confidentiality in the information.
• The government from being liable for the level of accuracy of the supplied information, or any subsequent amendments or misuse of the supplied information.

5.2 Ability to enter into an Agreement

Before entering into an agreement it is important to ensure that the officer has a legal right to enter into the agreement and that there is no legal or social impediment which should restrict the provision of the information under the agreement.

Examples of instances where restrictions could be placed on providing the information are:

• Where Main Roads is not the owner, of sole owner, of the information (e.g. joint data ownership with WAPS for crash data or with LG for road centreline on their roads). In this case approval is required from the data owner.
• If the information requested is of a commercial or confidential nature and its provision to the third party either breaches this confidence or is unauthorised.
• If there are privacy implications in releasing the information.
• If the agency is prohibited by legislation from providing the information or entering into a legal agreement.

5.3 Types of Agreements

Two licensing agreements have been developed for use when sharing or supplying information to another party...

Level 1 agreement- A licensing agreement for the use of digital information acquired from the State of Western Australia for non - commercial purposes.

The Level 1 agreement or licensing agreement for the provision of information for non-commercial purposes is to be used in situations where information is shared with other agencies in the Western Australian public sector, other governments (including local government), research institutions and the private sector for non-commercial use. It is a formal contractual agreement upon which action can be taken should the user break any terms or conditions.

Level 2 Agreement- A licensing agreement for the commercial use of digital information acquired from the State of Western Australia.

The Level 2 agreement or licensing agreement for the provision of information for commercial purposes is to be used in all situations where information is shared for a commercial purpose. This includes all agencies in the Western Australian public sector (including WALIS agencies), other governments, research institutions and the private sector. Commercial use can be defined as "used for the purpose relating to trade and the buying, selling or exchange of commodities for profit". This includes situations where information is provided for the purpose of obtaining competitive advantage in a commercial situation.

5.4 Duration of Agreements (Termination Date)

In the Letter of Understanding (Level 1), the agreement may be terminated by either party upon one month's notice in writing.

The schedule of the Level 2 licensing agreement provides for a termination date upon which the agreement must either be renewed or it ceases to be effective. It would be usual for the agency to negotiate the termination date with the licensee according to the following factors:

• Life of the information or works.
• Potential use of the information or works.
• Agreed maintenance cycles (if any) for the supplied information or works.

5.5 Responsibility for Agreements

The opening clause of the agreement allows public sector agencies to enter into a licensing agreement either as:

• A custodian agency acting on behalf of the State of Western Australia; or,
• A corporate body; but not both.

Agencies able to enter into the agreement as a corporate body are those agencies that have their own Act which specifies in the enabling legislation that the agency is a corporate body. The agreements may be signed by the Chief Executive Officer, a person acting upon their behalf, or, the Minister responsible for the agency.

Within Main Roads approval is required by the Branch Manager or an officer designated by the Manager. Factors which may determine who should sign the agreement will include:

• The type and amount of information involved.
• The complexity of the agreement.
• The intended use of the information.

5.6 Charges

The agreements make provision for charges to be levied for the supply of information. The level of charges should follow the current policies as endorsed by Cabinet, Treasury or WALIS Executive Policy Committee at the time of signing the agreement. It should also be noted that Section 4 of the State Trading Concerns Act restricts agencies from utilising market or profit based charging unless they have specific legislative authority.

Charges may also be set at zero at the discretion of the Responsible Officer or they may be substituted by other suitable exchange provisions. For example, in some cases the costs incurred in the supply of the data could be so small they may not substantiate the calculation of charges; or the Responsible Officer may decide to provide information in exchange for some other information or service.

NOTE Treasury through consultation with government agencies has developed a document "Pricing and Transfer Policy". This document details information regarding the setting of charges and royalties for the transfer and selling of digital information. This document has recently been endorsed by State Cabinet for implementation. 

5.7 Royalties

Provision is made for the charging of royalties in the Level 2 agreement (commercial use). Royalties are intended to protect the government's interest in its information asset by providing a fair return on the government's investment in its information resource.

Within Main Roads the application of royalties has been inconsistently applied with various rates being developed on an inconsistent basis. It is planned to develop a policy on the application of royalties that will be applied throughout Main Roads. This policy will be developed through reviewing how other government agencies address the issue of royalties and after consultation with internal stakeholders.

Until this policy is defined any questions on the application of royalties or any other issue regarding licensing can be discussed with the Data Manager - Road & Traffic Engineering.