Loomio
Wed 20 Apr 2016

Modify the ICT procurement policy

EA
Edward Abraham Public Seen by 483

This policy should be closely linked to the IP section of the ICT procurement policy, see Gudeilines for the treatment of intellectual property in ICT contracts. This document gives three options for the treatment of IP:
> Three options are recommended for the treatment of IPR in ICT contracts:
* The Customer Agency owns all new IP in the deliverables, with no licence back to the
Supplier.
* The Customer Agency owns all new IP in the deliverables, with a licence back to the
Supplier for its commercial exploitation.
* The Supplier owns all new IP in the deliverables, and provides a licence to the Customer
Agency and other State Services agencies for any purpose other than commercial
exploitation.

We have successfully used this policy in the last year to help us retain IP in software we developed for a government client. The decision tree in the document and templated contract clauses were extremely useful to help us discuss this with a client in a straightfoward way.

At least one of these options should recommend open sourcing. Ideally there is strong commitment from government (open by default) and this is the default option. It would be a shame to have a great open source licence but no way to get to it be following these IP guidelines.

EA

Edward Abraham Wed 20 Apr 2016

Note that the ICT procurement policy is no longer online (except as a PDF). In particular this link is dead. Is the policy still active?

DS

Danyl Strype Mon 25 Apr 2016

This wording is hard to respond to, because it fudges together a number of totally separate areas of law under the misleading label "intellectual property". This catch-all phrase is presumed to cover copyright, patents, trademarks, and other areas of law, which each have their own issues, and need separate policy statements to address them.

If we presume that by "IP" the policy means trademarks, the wording is fine, as there is no way to libre license trademarks. For an open source project, I recommend we learn from what happened to the Koha project, and make sure any relevant trademarks are owned by the commissioning agency (or a suitable vendor-neutral stewardship body), under one of the first two options on that list.

If we presume that by "IP" they mean copyright (in either the source code or in interface artwork/ documentation), all three of these options assume a proprietary, exclusive approach, and we need to start again with fresh wording for open source projects.
* the first option is not an option, because any free code license delivers rights back to the supplier
* the second option is probably the ideal. Any free code license allows commercial use by the supplier
* the third option is also not an option, because for the reason given above, even if the supplier retains the copyright, it can't limit commercial use by the commissioning agency or anyone else

CF

Cam Findlay Fri 29 Apr 2016

See paragraph 11 in NZGOAL-SE draft. It seems the IPR in ICT contract guide from SSC has an out clause should a government agency want to retain rights in order to open source the work. This is on page 9 of the "Guidelines for Treatment of Intellectual Property Rights in ICT Contracts" at https://www.ict.govt.nz/assets/Uploads/Documents/ipr-guidelines-2008.pdf

I think therefore that NZGOAL-SE can be used alongside this other piece of guidance without requiring rework in the IPR guide.

CF

Cam Findlay Mon 2 May 2016

Chiming in post consultation, a quick transparency statement. I'm going to be involved in helping draft the NZGOAL-SE revision, my opinion here is my own and I want to try and gain good understanding about how these two policies interact here to help guide my decisions through the revision process. On to some thoughts...

In terms of the IPR in ICT contract guide mentioned, following the decision tree in IPR in ICT, page 13, it mentions "The contracted deliverables mainly use pre-existing IP (which is already owned by the supplier)". In terms of taking an existing FOSS project they supplier doesn't "own" it as such and is reusing under FOSS license terms. Therefore it would seem to point the policy user towards the NO and "copyright owned by agency" end of the spectrum. This end is required to run it through the NZGOAL-SE review and release process.

If we think about what we are trying to do, end-to-end rather than siloed per policy I think a compatible and inter-linked chain leading to the desired outcome can be achieved, that of getting code produced through some procurement/commission, released under FOSS licenses for wide reuse.

Open sourcing something is not commercialising directly (to me this negates the "government is not in the business of commercialising software" argument for not holding the copyright). It's making a taxpayer funded, public good available as a base to innovate on top of. It allows parties in and outside of government to make use of and yes, commercialise as long as they follow the license (and this includes both permissive and copyleft).

My thoughts on the 3 positions (though this would appear to only be relevant in the case of wholly new software where the full copyright is vested in one party):

1. Customer Agency owns the new IP and decides whether to or who may commercialise
Copyright owned by agency they can then use the review and release process as per NZGOAL-SE.

2. Customer Agency owns the IP but licenses the Supplier to use and commercialise
Agency could release under open source license terms, if the intention is for the supplier to commercialise through incorporation into closed source applications or derivatives, a permissive license could be used publicly or granted to the supplier specifically and then publicly released under any license MIT/GPL etc for general public reuse.

3. Supplier owns the new IP but provides licenses to the Customer Agency and all other State Services agencies
To keep things simple, suppliers could use NZGOAL-SE to provide a FOSS license back to Government as a default. They could use a permissive license if they have discussed reuse in closed source derivatives. Further, the govt can then sublicense a public release under any other license (MIT/GPL) if they wish. Alternatively, the supplier could release under GPL for govt reuse, as they are the copyright holders they can then use a non-GPL’d copy of code to commercialise. They could release on behalf on a govt repo or on supplier repo.

EA

Edward Abraham Mon 2 May 2016

If we think about what we are trying to do, end-to-end rather than siloed per policy I think a compatible and inter-linked chain leading to the desired outcome can be achieved

Excellent! Great you are thinking about how NZGOAL-SE fits in as part of a broader framework.

CF

Cam Findlay Tue 10 May 2016

From reading over the guidance on IPR in ICT contract in NZGOAL-SE draft, analysing the IRP in ICT contract guide, my thoughts are (with respect to my previous comment on this), that the current wording in para. 9-12 and 31-33 of NZGOAL-SE indeed align the IPR guidance and NZGOAL-SE as already compatible. We may be able to consider guidance notes on some practicalities on how to use these two policies together however, this is not to do with licensing (as NZGOAL-SE assumes you have already sorted out your copyright-related rights before moving further though the decision tree).

In light of this, we will be leaving this section as in the original draft. No changes to be added to the GitHub revision. :thumbsup:

CF

Cam Findlay Tue 4 Oct 2016

UPDATE

I've put together some guidance notes around how agencies can use both the IPR Guidelines and NZGOAL-SE together.

Would be great to get your comments and feedback - the this thread: https://www.loomio.org/d/aQ2xHfcI/guidance-notes-nzgoal-software-extension-and-intellectual-property-rights-in-ict-contracts

CF

Cam Findlay Mon 12 Dec 2016

An update, we worked with MBIE and DIA to put together a guidance note to help users work with both NZGOAL-SE and the IPR Guidelines procurement policy. Pleased to say, this is now published alongside NZGOAL-SE at https://www.ict.govt.nz/guidance-and-resources/open-government/new-zealand-government-open-access-and-licensing-nzgoal-framework/nzgoal-se/nzgoal-se-guidance-note-1/