Intellectual Property and Embargo
As a research student you will create Intellectual property (IP). IP is the productive new ideas you create.
It can be an invention, literary and artistic works, trademark, design, brand, or the application of your idea.
While you own the IP that you create during your research there are circumstances where if you are working on pre-existing University IP or with external third parties that certain actions may be required.
In certain circumstances the work in your thesis may need to be withheld from public release. This is referred to as an embargo. An embargo may be applied automatically depending on the IP in the thesis or you may submit an application to request an embargo is applied.
Further information on both IP and embargoes can be found in the Research Student Handbook and frequently asked questions are in the tabs below.
What is intellectual property (IP)?
Intellectual property (IP) is, broadly speaking, intangible property that is the creation of your intellect – it is the productive new ideas you create. It can be an invention, literary and artistic works, trade mark, design, brand, or the application of your idea. Some rights must be registered in order to ensure maximum protection (such as patents) while others exist at law immediately upon creation (e.g. copyright).
A definition of IP that you might find in a University of Adelaide agreement is as follows:
Intellectual property means patents, inventions, plant breeder’s rights, registered or unregistered trademarks and service marks, registered designs, copyrights, database rights, design rights, confidential information (essentially the right to require information to be kept confidential), know-how, applications for any of the above, and any similar right recognised from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
Is my project a Special Case A and/or Special Case B project?
The University’s IP Policy states that you own the IP created in the course of your studies, except where you participate in a project that:
- Builds upon pre-existing University owned IP (e.g. patent, plant breeders rights number, secret know how) that is maintained and potentially commercialised by the University (“Special Case A”); OR
- Is being carried out for, or in conjunction with, an external third party (e.g. CSIRO, DSTG, CALHN, SAHMRI, SARDI, FRDC, other Universities, companies and industry partners, etc.) (“Special Case B”).
If your project is either Special Case A and/or Special Case B, the University is entitled to, and asserts ownership of, the IP created by you.
Why does the University need to claim ownership of the project IP and how does it do so?
The University claims ownership of your project IP by requiring you to sign a standard form, the Student IP Deed Poll. A Deed Poll is a simple legal deed made and signed by one person. By signing a Student IP Deed Poll, you confirm your agreement to assign and transfer to the University your entire legal interest in and to any IP you develop.
The assignment of IP rights in these circumstances is necessary to:
Is there an automatic embargo which arises from signing an IP Deed Poll?
Yes. Unless otherwise approved by Research Legal Services, if you are working on a Special Case A and/or Special Case B project and you sign an IP Deed Poll, an automatic IP embargo will be placed on your thesis from the date of original submission. At the end of that period, the embargo will expire and be automatically lifted; meaning that access to the thesis will no longer be restricted. An appropriate notification will be sent out at that time. In the meantime, an application can be made to have the embargo waived (during candidature) or removed (after submission) if it is not necessary, or is no longer necessary. Further details relating embargos and how to apply to have them waived or removed can be found in the embargo section on this page.
What if I do not wish to assign my IP to the University?
If it has been determined that you are working on a Special Case A and/or Special Case B project, it is important to note that you will be unable to work on that project if you do not agree to assign your IP to the University through signing a Student IP Deed Poll. You will need to choose another project that does not build on pre-existing University owned IP nor involve an external third party, subject to the availability of appropriate supervision, resources and funding for that particular project.
Who can I contact if I object to signing an IP Deed Poll?
If it has been determined that you are working on a Special Case A project only, ordinarily an IP Deed Poll is required to be signed under the University’s IP Policy. If you or your Principal Supervisor wish to object to signing an IP Deed Poll in these circumstances, your principal supervisor needs to contact Gerard La Fontaine at Commercialisation; via email (with a copy to email@example.com). The email should detail the pre-existing University IP (eg patent number, plant breeders rights number, secret know how) and how your project builds on this IP. Adelaide Enterprise will then work with you and your Principal Supervisor to resolve the situation and will advise the AGRS accordingly.
If it has been determined that you are working on a Special Case B project (or both Special Case A and B), ordinarily an IP Deed Poll is required to be signed under the IP Policy. If you or your principal supervisor wish to object to signing an IP Deed Poll in these circumstances, your principal supervisor needs to contact the Legal Counsel assigned to the student’s School/Discipline at Research Legal, via email (with a copy to firstname.lastname@example.org). The email should detail the grounds on which the objection is made and must attach all relevant documentation for consideration. Research Legal will then work with your principal supervisor to reach an outcome and will advise the Adelaide Graduate Research School accordingly.
I am not sure if I am working on a Special Case A project, who can I ask?
Your supervisors can advise if you are working on a project which builds upon pre-existing University owned IP. If there is any ambiguity, Commercialisation, an entity established by the University in 2016 to drive entrepreneurship efforts, can advise.
Where Special Case A applies, Adelaide Enterprise is able to provide expert IP advice and agrees to protect the IP (where assessed as commercially feasible) at its cost. Adelaide Enterprise also ensures that student contribution is recognised and rewarded in the same way as a member of staff, by sharing in the proceeds from commercialisation of the IP (e.g. royalties on sales of products by a customer) in accordance with the University’s IP Policy.
I am not sure if I am working on a Special Case B project, who can I ask?
Your supervisors can advise if you are working on a project which is being carried out for, or in conjunction with, an external third party. All contracts and agreements entered into are reviewed by Research Legal Services on behalf of the University.
I still have questions regarding IP or completing the IP section of the CCSP, who can I contact?
What at the common reasons that embargoes are applied for?
As described in the Research Student Handbook once a thesis has been published in the University Repository, Adelaide Research and Scholarship, it is possible that some publishers will not publish the work presented in the thesis in a journal or as a book as it is already considered to be published. Other reasons embargoes are granted include cases where national defence security information or other sensitive information is included in the thesis.
An automatic embargo has been applied to my thesis but it is no longer required. How do I get it removed?
You will need to arrange for all of your supervisors, and any sponsors, to complete the appropriate removal of embargo forms and submit them to the Adelaide Graduate Research School. The embargo will be lifted if all parties are in agreement.
What is the maximum amount of time that an embargo will be granted for?
You should only apply for an embargo for the period of time you will actually need to publish your work, or for the reason requiring the embargo has passed. Normally only a maximum of 2 years will be approved and you will need to provide details on the steps that you will be taking to ensure that the embargo can be removed such as which publishers you will be approaching and when for your application to be considered.
In very rare circumstances a permanent embargo may be warranted, such as when the thesis contains information relevant to national defence security.
What will be displayed in the University repository, Adelaide Research and Scholarship, while my thesis is embargoed?
Although your thesis file will not be available on Adelaide Research and Scholarship, the citation of the thesis (comprising author, title, abstract, date the degree was awarded, physical description, name of the degree for which the thesis was accepted and the faculty/school/discipline of enrolment) and the exegesis (if applicable) will appear.