Purpose

To ensure that Ontario government intellectual property assets are managed efficiently, effectively and consistently across the government.

To promote open government by providing fair and equitable access to intellectual property.

To encourage ministries to make intellectual property available for use by third parties to meet program needs and stimulate economic development.

Critical list

  • Mandatory requirement to use the appropriate intellectual property rights to protect information.
  • Must ensure that the Queen’s Printer’s copyright notice appears on all published and licensed materials.
  • Ministries must obtain the necessary rights in any contract which involves creating intellectual property for the government, or providing it to the government.
  • Must decide whether information is to be provided free, at a reasonable price or at market price based upon the purpose for distributing the information.
  • Ministries must obtain licenses from Publications Ontario for contracts granting commercial reproduction rights to licensees, or transferring those rights, except in certain circumstances.
  • Exclusive licenses must not be granted unless there are valid business reasons for doing so. There must also be an open competition or approval by the deputy head for exclusive licenses.
  • Ministries must charge fees based on market value for the right to use information for a commercial purpose, with certain exceptions.
  • The government will continue to claim copyright in statutes, regulations and judicial decisions, but will allow third parties to reproduce these materials without seeking permission and without charge. The materials must be reproduced accurately and must not be represented as an official version.

Application and Scope

This directive applies to all ministries and Schedule 1 and Schedule 4 agencies unless exempted in a Memorandum of Understanding.

This directive applies to all intellectual propertyproduced by or for all ministries and Schedule 1 and Schedule 4 agencies.

This directive is subject to the Freedom of Information and Protection of Privacy Act (FIPPA). Ministries may only release information  when permitted to do so under that Act, or any other legislation concerning access to information.

This directive applies to all new contracts that affect intellectual property and to existing contracts when they are renewed or extended.

This directive does not apply to the Archives of Ontario.

Principles

Ministries should:

  • Manage intellectual property assets efficiently, effectively and consistently
  • Make intellectual property available for use outside of government when such use conforms to the mandate of the ministry or the purpose of the intellectual property
  • Provide access to intellectual property fairly and equitably
  • Protect intellectual property through its development and lifespan.

Mandatory Requirements

Protecting Intellectual Property

Ministries must:

  1. Use the appropriate intellectual property rights to protect information
  2. Ensure that the copyright notice of the Queen’s Printer for Ontario appears on all published materials. The Queen’s Printer administers copyright for the government
  3. Report violations of government copyright, trademarks and patents to Publications Ontario
  4. Report visual identity violations to Corporate Policy Branch, Management Board Secretariat
  5. Enforce their own trade mark, patent, plant breeders’, industrial design and integrated circuit topography rights
  6. Consult with Publications Ontario prior to applying to register a trade mark.

Acquiring Intellectual Property

Ministries must obtain the necessary rights in any contract which involves creating intellectual property for the government, or providing it to the government

Pricing and Distributing Intellectual Property

How to Decide the Price

Ministries must decide whether information is to be provided free, at a reasonable price or at market price. The key factor is: why is the ministry distributing the information?

Free if:

  1. Distributing the Information is essential to achieve the ministry’s goals
  2. It is in the public interest to have broad public access
  3. Benefits outweigh costs

Examples:

  1. Parks guides and pamphlets
  2. Public Accounts “Financial Statements” Report
  3. Product Catalogues
  4. Sport Fishing Regulations

See Guidelines for many more examples.

Reasonable Price

Apply the user pay principle if:

Only some members of the public have an interest in obtaining the information and getting the information out is consistent with the ministry’s goals.

What is a Reasonable Price?

Recover at least the incremental costs of providing the information such as printing and distribution costs. A reasonable price will help stop waste.

Examples:

  1. Driver’s Handbook
  2. Geological Maps
  3. Government Telephone Directory (hard copy)
  4. List of Licensed Insurers

See Guidelines for many more examples.

Market Value

Change market price when:

Someone wants more value added information or service than the ministry would normally provide.

Examples:

  • Entire database for the Government Telephone Directory
  • CD-ROM of Statutes and Regulations

See Guidelines for many more examples.

There are a number of ways the ministry can do this:

  1. The ministry may produce it by itself
  2. Partner with the private sector
  3. License to the private sector

A cost / benefit analysis would determine which approach is best.
Ministries must refuse to provide access to information if it would contravene FIPPA or any other legislation concerning access to information.

Licensing

Ministries must obtain licenses from Publications Ontario for contracts granting commercial reproduction rights to licensees, or transferring those rights, except in the following cases:

  1. Where only ministries’ own trade mark, patent, plant breeders’, industrial design or integrated circuit topography rights are involved
  2. Where the Queen’s Printer has granted authority by delegation to license or transfer rights.

Licenses must include appropriate disclaimer and indemnity clauses which protect the government from liability caused by the improper use of intellectual property.

Ministries must ensure that the intended use of intellectual property which is proposed for licensing conforms to legislation or policy.

Ministries must include a privacy impact assessment with any request to Publications
Ontario to sell or license a personal information database.

Exclusive licenses must not be granted unless there are valid business reasons for doing so. There must also be open competition or approval by the deputy head for exclusive licenses.

Ministries must not license or transfer any intellectual property that forms part of the government’s visual identity. Only the Queen’s Printer can issue licenses regarding visual identity.

Delegation of Authority to License

The Queen’s Printer authorizes deputy heads, or their delegates to license the reproduction of government copyright material as long as it remains in context, its source is acknowledged, and it is not used for commercial gain. Deputy heads, or their delegates have the discretion to charge for such reproduction. The Queen’s Printer’s copyright notice must appear on the reproductions.

Providing Access

Under its deputy head’s delegation of authority from the Queen’s Printer, a ministry may include a statement in its information permitting its reproduction for non-commercial purposes. Otherwise, there is no right to copy government information, other than legal materials, except under license.

Charging Fees for Licensing

Ministries must charge fees based on market value for the rights to use intellectual property for a commercial purpose. Fees may be reduced or waived, however, when it is:

  • In the public interest
  • Critical to public health or safety, or
  • Required to meet program needs.

Legal Materials

Although the Queen’s Printer claims copyright in Ontario statutes, regulations and judicial decisions, the Queen’s Printer permits any person to reproduce the text and images contained in the statutes, regulations and judicial decisions without seeking permission and without charge. The materials must be reproduced accurately and the reproduction must not be represented as an official version.

Responsibilities

Deputy Heads

The Deputy Head is responsible for:

  1. Adhering to the principles and mandatory requirements in this directive and ensuring that their staff do the same
  2. Including a privacy impact assessment with any request to Publications Ontario to sell or license a personal information database
  3. Approving requests to Publications Ontario for exclusive licenses
  4. Charging fees based on market value for the rights to use intellectual property for a commercial purpose, with certain exceptions
  5. Approving exemptions from market value and/or incremental cost recovery pricing when exemptions apply
  6. Enforcing their ministry’s trade mark, patent, plant breeders’, industrial design and integrated circuit topography rights.

Management Board Secretariat

Management Board Secretariat is responsible for:

  1. Helping ministries to interpret and apply this directive
  2. Advising ministries on intellectual property issues, and on the issuing of copyright licenses
  3. Enforcing all government intellectual property rights except ministries’ trade mark, patents, plant breeders’, industrial design and integrated circuit topography rights.

Program Managers

The Program Manager is responsible for:

  1. Obtaining the necessary rights in any contract which involves creating intellectual property for the government, or providing it to the government
  2. Determining the purpose for distributing intellectual property and decide whether the intellectual property will be provided free, at a reasonable price (i.e. at least incremental cost recovery) or at market price, depending on that purpose
  3. Evaluating requests to use intellectual property for a commercial purpose and requesting licenses from Publications Ontario when appropriate
  4. Reporting any violations of government copyright, trademarks or patents to Publications Ontario
  5. Reporting any visual identity violations to Corporate Policy Branch
  6. Consulting with Publications Ontario before applying to register a trade mark
  7. Ensuring proper delegations of authority are in place for staff issuing licenses to use intellectual property for non-commercial purposes.

Definitions

"Intellectual property" is information and the rights which protect it.

"Intellectual property rights" include: copyright, trade mark, patent, plant breeders’ industrial design, integrated circuit topography, and other forms of intellectual property protection.

"Information" includes text, images, drawings, designs, software, numerical data and ideas created or collected by or for Ontario government ministries and agencies.

"Licensing" means either giving or selling the right to an individual or organization outside the government to use or reproduce intellectual property.