Critical Analysis Of The Intellectual Property Policy Qh-pol-009:2015

Critical analysis

Introduction

A comprehensive critical analysis of the ‘Intellectual Property Policy QH-POL-009:2015’ will be conducted through the use of the steps/ stages policy analysis framework. This framework will discuss the Intellectual Property Policy using the framework’s three steps; Formation, Implementation and Evaluation. These three steps will be used to complete a clear in-depth analysis of the Intellectual Property Policy (2015).

Formation

The first component in the ‘steps/ stages’ framework for policy analysis is the formation section. This section identifies information collected, issues identified, strategies selected and resources identified.

Information collection:

Information is collected from current literature along with The Intellectual Property Policy specifications, Queensland Health Guidelines, Acts and Fraud Laws.

Issue Identified:

There is a lack of consistency and education surrounding fair quotation across the area of general medicine. An example of this is the common practice of staff using examples of work in interviews with their name as creators. According to Intellectual Property Policy (2015) QH-POL-009:2015 all works produced by an employee shall be owned and managed by Queensland Health (Business Queensland, 2019; Intellectual Property Policy, 2015). This brings to light unclear boundaries surrounding rights to fair quotation and potential fraud. According to Merriam-Webster Dictionary (2019) fraud is “an act of deceiving or misrepresenting”. The act of placing ones name on anything implies ownership yet if that thing is not the rightful property this act would be considered a misrepresentation (Merriam-Webster Dictionary, 2019; Salmon, 2018). From this it is evident that the Department of Health requires clearer boundaries surrounding intellectual property.

Strategies selected:

Breaches in Intellectual Property can be intentional and unintentional (Sople, 2016). The main issue with this policy is not in the policy itself but a department-wide lack of understanding about employees placing their name as the creator on work which results in an unintentional breach of policy. The strategies used to address this issue will therefore be focused on understanding the policy and ramifications for a breach in policy. Skiba (2015) identifies the importance in understanding the policies themselves and the agencies’ rights to that intellectual property. This is supported by Intellectual Property Australia who state that the policy must be exhaustively described with very clear outlines of courses for action in the case of a breech (Intellectual Property Australia, 2019). Intellectual Property Australia (2019) suggest that the owner of the intellectual property which in this case is Queensland Health must take action in enforcing breaches in policy. In many cases legal action may be taken against the person/persons responsible for the infringement, a court will then decide on an appropriate legal remedy or compensation (Intellectual Property Australia, 2019). Legal action may be viewed as a last-case scenario.

Resources Identified:

Below are the Resources identified in the creation of the ‘Intellectual Property Policy QH-POL-009:2015’.

• Copyright Act 1968 (Cth)
• Designs Act 2003 (Cth)
• Trade Marks Act 1995 (Cth)
• Patents Act 1990 (Cth)
• Copyright Amendment (Moral Rights) Act 2000 (Cth)
• Queensland Public Sector. Intellectual Property Principles, Version 2: 2013- Standard: Intellectual Property [QH-IMP-009-1:2015]
• Guideline: Management of Intellectual Property purchased and created by the Department of Health
• Guideline: Moral Rights

Implementation

The second section in the ‘steps/ stages’ framework is the implementation component. This component identifies information disseminated, the policy is put into action and ethical considerations.

Information disseminated & Policy is put into action:

In disseminating the information it is important to understand the policy action. The following are strategies suggested by Intellectual Property Australia (2019) that may be used for Intellectual Property policy action; Identification, Proactive action, Detection methods, selective enforcement, budget and setting clear goals.

These strategies are identified in this component of the assessment and will be applied to the Intellectual Property Policy (2015) in the evaluation component of the assessment.

• Identification:

Clear identification and record of the legal owner of the property should be made by Queensland Health (Intellectual Property Australia, 2019; Parr, 2018). A written agreement or contract may be used to clearly identify the intellectual property owner (Intellectual Property Australia, 2019; Parr, 2018).

• Proactive action:

Measures should be taken to minimize infringement (Intellectual Property Australia, 2019). This can be achieved through patents, design registration and trademarks (Intellectual Property Australia, 2019).

• Detection methods:

Regular checks to identify any infringement of the policy (Ackerman, 2018; Intellectual Property Australia, 2019). Kadir, & Salim (2018) suggest regular auditing by qualified Intellectual Property consultants as a means for identifying useful Intellectual Property as well as potential breaches.

• Selective enforcement:

A clear course for action should be identified with appropriate responses for any infringements of policy (Intellectual Property Australia, 2019). For example, placing ones name on a original workpiece may be deemed redundant in requiring costly legal action but in the case that that original work was then sold to a private company legal action may be required (Intellectual Property Australia, 2019).

• Budget:

The value of the Intellectual property and the potential benefit of pursuing legal action must be considered as the cost of litigation for breaches of Intellectual Property can be very high (Dratler, 2018; Intellectual Property Australia, 2019).

• Set clear goals:

This strategy refers to the action to be taken (Intellectual Property Australia, 2019). This action must be appropriate to deter further infringement (Davison, Monotti, & Wiseman, 2015; Intellectual Property Australia, 2019).

Ethical considerations:

The underlying ethical considerations made in the policy can be explored through the areas of beneficence, non-maleficence, autonomy and distributive justice.

Beneficence is considered one of the core ethics in health care which means ‘to do good’ (Manda-Taylor, Mndolo, & Baker, 2017). Non-maleficence is closely related to beneficence and is often used interchangeably with the term ‘do no harm’ (Manda-Taylor, Mndolo, & Baker, 2017). The ‘Intellectual Property Policy QH-POL-009:2015’ applies a combination of these two ethical considerations to achieve the end result of more positive than negative outcomes (Intellectual Property Policy, 2015). This is demonstrated in the statement section of the policy “The Department of Health (the Department) shall manage intellectual property in a way that maximises the performance of the agency through the creation of positive public health outcomes whilst minimising legal, reputational and financial risk.” (Intellectual Property Policy, 2015).

Butts, & Rich, (2019) define autonomy as the liberty to operate with independence. Autonomy as an ethical consideration can be identified in the ‘Intellectual Property Policy QH-POL-009:2015’ under the scope section where it states “This policy applies to all intellectual property created, purchased or used by the Department” (Intellectual Property Policy, 2015). Autonomy is identified in the creation of intellectual property but the policy identified that this intellectual property is ethically owned by the Department of Health (Intellectual Property Policy, 2015).

Distributive Justice refers to fair, impartial and equal distribution of economic goods and services (Lamont, 2017, Manda-Taylor, Mndolo, & Baker, 2017). This ethical consideration was applied to the ‘Intellectual Property Policy QH-POL-009:2015’ to achieve the end result of consistent management of intellectual property across all departments which was identified as the purpose for the policy (Intellectual Property Policy, 2015). This is evident in the policy where “the Department” is frequently referred which in context implies a unified entity for equal distribution (Intellectual Property Policy, 2015).

Review of the process:

A review of the strategies suggested by Intellectual Property Australia (2019) for Intellectual Property policy action identified the many deficits contributing to the lack of compliance to the Intellectual Property Policy.

• Identification: It is not widely known that all Intellectual Property is owned by Queensland Health therefore further advertisement of this must occur.
• Proactive action: Measures to minimise infringement must be made as are no compulsory watermarks, header and footers or clear criteria for original works utilised by Queensland Health.
• Detection methods: There are currently no regular reviews conducted to identify cases of Intellectual Property infringement.
• Selective enforcement: The Intellectual Property policy does not appear to be enforced by Queensland Health with regard to the naming or original works.
• Budget: This policy is not enforced at a base level therefore it would not be pursued legally unless original works were taken to be sold.
• Setting clear goals: The policy states that all works produced by an employee shall be owned and managed by Queensland Health (Business Queensland, 2019; Intellectual Property Policy, 2015) set apart from this there are no clear actions or outcomes identified.

It is clear that there are many contributing factors to the lack of Intellectual Property Policy compliance. Intellectual Property Australia (2019) has outlined the above strategies to minimise breaches of the Intellectual Property Policy (2015) yet not one of these strategies is being utilised by Queensland Health.

Review of the outcome

Based on the information gained in this critical analysis changes must be made in order for the policy to fulfil its original purpose which was to “manage intellectual property in a way that maximises the performance of the agency through the creation of positive public health outcomes whilst minimising legal, reputational and financial risk” (Intellectual Property Policy, 2015). Department-wide clarification must be distributed surrounding the ownership of intellectual property by the Department of Health. The implementation of a standardised scaffold for original works which included Queensland Health-specific layouts could be introduced (Ackerman, 2018; Kadir, & Salim, 2018; Sople, 2016). This strategy could be improved when in combination with regular department-wide audits by qualified auditors (Ackerman, 2018; Kadir, & Salim, 2018; Sople, 2016). These audits should monitor the correct use of these layouts to ensure consistency of compliance across all Queensland Health Departments (Ackerman, 2018; Kadir, & Salim, 2018; Sople, 2016). Clear goals must be set for adhering to the policy and ramifications for non-compliance must be not only set but also enforced. This needs to be addressed at a Queensland Health Department-wide level to ensure consistency across departments. With the ever evolving implementation of electronic materials (Lambert, 2016) a positive change in practice may be made within the organisation as this new technology allows for the standardisation of procedures at a department-wide level (Sople, 2016; Sweet, & Maggio, 2015). Initially, the transition to digital standard formats will require close management however with an increase in knowledge this will not require such close scrutiny (Sweet, & Maggio, 2015).

Conclusion

The Intellectual Property Policy was created to meet the organisational need for the consistent management of Intellectual property across the Department of Health (Intellectual Property Policy, 2015). Many ethical considerations were made in the creation of this Policy (Intellectual Property Policy, 2015) yet there are major issues with its implementation. This critical analysis was conducted through the use of the steps/ stages policy analysis framework. This framework has discussed the Intellectual Property Policy through three steps; Formation, Implementation, and Evaluation. From this, it is clear that further efforts to improve department-wide compliance with the Intellectual Property Policy must be made.