This chapter contains the following key action:
1. Datasets will not be commercialised unless an agency has a statutory function to do so, or Ministerial approval is granted.
9.1 Commercialisation background
Releasing government datasets at no or minimal cost will create more opportunities for the community to engage with data and for the private sector to reuse and add value to datasets. Making datasets freely available is the State’s default position and where possible agencies must make data available with minimum restrictions, including the removal of cost barriers.
Research and economic modelling has found that releasing public sector data at no or minimal cost maximises economic benefits.
Broadly, intellectual property including datasets must not be commercialised unless there is a clear net benefit to the community. The government is not in the business of commercialising datasets. Approval to commercialise will only be granted in exceptional circumstances.
Detailed information on commercialisation of data and IP can be found in the Whole of Victorian Government Intellectual Property Policy and supporting Guidelines.50
9.2 When may a dataset be commercialised?
There are times when the decision will be made to commercialise government data. In these cases the decision will be based on a number of considerations.
An agency may commercialise, or apply the Cost Recovery Guidelines to, data if:
(a) it has an explicit statutory function to do so; or
(b) it has been explicitly authorised by the Minister for Finance51 to do so because of a clear net benefit to the Victorian community.
Each basis for commercialisation is discussed further below.
Accordingly, the State discourages the commercialisation of data except where provided for by legislation or in other exceptional circumstances.
9.2.2 Commercialisation under explicit statutory function
An agency may commercialise or apply the Cost Recovery Guidelines to data if it has an explicit statutory function to do so. In such cases there is no need for the agency to seek authorisation for commercialisation or cost recovery.
Some statutes may provide an agency with a power, rather than a function, to commercialise data. Whether this allows commercialisation under the Policy will depend on the surrounding circumstances.
Agencies that intend to commercialise data should carefully consider whether there actually is an explicit statutory function to do so. If there is any doubt about whether this applies, an agency should consult with DTF at IPpolicy@dtf.vic.gov.au.
9.2.3 Commercialisation with Ministerial authorisation
If an agency intends to commercialise or apply the Cost Recovery Guidelines to data without an explicit statutory function to do so, it requires explicit authorisation by the Minister for Finance52 under Principle 8(b) of the IP Policy.
This Principle applies when:
- an agency proposes to enter a new commercialisation arrangement in relation to existing data (even where that data has previously been commercialised)
- an agency proposes to develop data to be commercialised (including developing new data for the purpose of an existing commercialisation arrangement)
- an existing commercialisation arrangement comes up for renewal or amendment
Commercialisation or application of the Cost Recovery Guidelines may be authorised where the agency has demonstrated that it will result in a clear net benefit to the Victorian community. A ‘net benefit’ is an overall positive impact on the community. It takes into account the costs and benefits related to:
- public health and safety
- social and community impact
- environmental impact
- competition
- economic impact
Approval to commercialise or apply the Cost Recovery Guidelines will only be granted where a clear net benefit to the Victorian community has been demonstrated, having regard to all of the circumstances. For example, the possibility of a financial return from commercialisation will not, of itself, necessarily constitute a clear net benefit to the Victorian community.
Agencies are strongly encouraged to consult with DTF at IPpolicy@dtf.vic.gov.au prior to making a request for authorisation of commercialisation. Doing so is likely to reduce the time required for the agency to develop the request and for the request to be considered.
Detailed information on gaining Ministerial authorisation for commercialisation of data and IP can be found in the Whole of Victorian Government Intellectual Property Policy and supporting Guidelines.53
9.3 Freemium commercialisation model
There are occasions when a ‘freemium’ commercialisation model may be required to support the publics need when releasing data to the public. This is usually only required if the public require higher levels of support beyond the access to the dataset.
In the freemium model the dataset continues to be made available at no or minimal cost. The supporting elements that improve access to the dataset, including improved levels of reliability and service, contracted service level agreements and access to technical and specialist support may be considered suitable of commercialisation.
In such cases there is no need for the agency to seek authorisation for commercialisation or cost recovery as long as the data is still available at no or minimal cost.
9.4 What other policies must be considered when commercialising datasets?
9.4.1 Cost recovery
Where seeking approval to commercialise, (or continue to commercialise) datasets, a cost recovery model must be considered. This allows an agency to comply with the principle of making government data available at no or minimal cost.
Agencies must use the Victorian Government Cost Recovery Guidelines54 to propose an appropriate charging model. The guidelines provide a framework for use by government entities when considering, developing and reviewing user charges and regulatory fees. They ensure that cost recovery arrangements in Victoria are transparent, efficient, effective and consistent with legislative requirements and government policy.
9.4.2 Competitive neutrality policy
Decisions to commercialise datasets are subject to the Victorian Government Competitive Neutrality Policy55 which is concerned with transparent cost identification and pricing in a way that removes advantages arising from public ownership. Competitive neutrality ensures that the significant business activities of publicly owned entities compete fairly in the market.
50. www.dtf.vic.gov.au/funds-programs-and-policies/intellectual-property-policy
51. The IP Policy refers to the Treasurer in this Principle, but in practice the Minister for Finance is responsible for authorisation requests under Principle 8(b) of the Victorian Government Intellectual Property Policy and supporting Guidelines.
52. The IP Policy refers to the Treasurer in this Principle, but in practice the Minister for Finance is responsible for authorisation requests under Principle 8(b).
53. www.dtf.vic.gov.au/funds-programs-and-policies/intellectual-property-policy
54. https://www.dtf.vic.gov.au/financial-management-government/indexation-fees-and-penalties
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