Guidance and Resources

Copyright law

8. Key aspects of copyright law relevant to open licensing generally are set out in the NZGOAL Copyright Guide.² Additional aspects relating specifically to software include the following:

1. copyright exists in original software: software is a form of "literary work" and original literary works are a category of works in which copyright exists (section 14(1) of the Copyright Act 1994 and the section 2(1) definition of "literary work");
2. infringement: as such, unless entitled to do so by a copyright licence or statutory provision, a person infringes copyright in software that that person does not own when he or she does any of a number of "restricted acts", the most common of which is copying the work or a substantial part of it or adapting the work;
3. adaptations: an "adaptation", in relation to a literary work that is a computer program (i.e., software), includes "a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code, otherwise than incidentally in the course of running the program" (section 2(1));
4. first owner of copyright:
   1. employee-employer relationship: when employees create software for their employer in the course of employment, the employer is the first owner of copyright in the software unless the employment contract states otherwise. This is the case where the employer is the Crown (section 26) and where the employer is another person, agency or entity (section 21(2));
   2. service provider-customer relationship: when a service provider creates software for a customer under a contract for services, the customer is the first owner of copyright in the software unless the contract for services states otherwise. Again, this is the case where the customer is the Crown (section 26) and where the customer is another person, agency or entity (section 21(3)).

Guidelines for Treatment of Intellectual Property Rights in ICT Contracts

9. These Guidelines³ are relevant where an agency procures the development of software from a service provider. They state that only in limited circumstances should the government own and exploit new intellectual property rights (IPR) created under an ICT contract. The default position is that the supplier should own the new IPR, with licences being granted to the customer agency and other State Services agencies.

10. This position could create an obstacle to an agency licensing developed software on open source terms because the agency can only do so if it has the requisite rights to do so. If it doesn't own the copyright, it doesn't have the requisite rights unless expressly authorised by the copyright owner.

11. The Guidelines recognise, however, that there may be situations where an agency needs to own the IPR. One of those situations is where the agency "intends to allow free use of the IPR on open source terms". Agencies would, therefore, be acting consistently with these Guidelines if they were to require the development contract to confer ownership of copyright in the software on the agency, on the basis that they wish to license the software on open source terms.⁴

Government Rules of Sourcing

12. Who is to own the copyright in new software is a significant issue that needs to be considered at the time of procuring the software development services, a point that is made clear in Rule 61(1) (Intellectual Property) of the Government Rules of Sourcing.⁵ That Rule states:

"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."

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