Source code of Budget 2012 App

Thoughts everyone?

My first thought is that s9(2)(b) usually relates to information owned by third parties but held by the agency, whetheras here the Treasury actually owns the code. Given that the Treasury owns the code, the prejudice would be to the Treasury itself, not to the third party.

Indeed, the other context is where an agency is behaving as a commercial party, for example negotiating a contract, or competing against the private sector. Neither of these considerations apply to the Treasury here.

I agree. It looks quite dubious. Respond quoting the Practice Guidelines at them, then take it to the Ombudsman if necessary. At the least, we'll get some guidance about whether government departments can have "trade secrets" about non-commercial activities.

Hi Joshua. I may have missed something, but why do you believe that Treasury owns the code?

At http://www.beehive.govt.nz/release/budge... Bill English's press release states that the application was developed by a Wellington company called PaperKite.

In my own experience---occasional open source companies excepted---it's common for third party software development companies to retain ownership and distribution rights of the source code, even if the customer's negotiated a clause to be allowed to see it and keep a copy for their own reference. Source code, patterns and techniques are often re-used across multiple products, and I'd not be surprised if this is exactly what Paperkite does. If it's a traditional closed source company, it's likely it'd consider the code to be a trade secret. If Treasury actually has a copy then it may be written into the contract that it can't be given to anyone else.

I should add a disclaimer with my comment, since in the past I've worked as part of Treasury's IT team. I left a couple of years back and have had nothing to do with the Budget app.

Hmm. Good point Mike: I may need to OIA a copy of the contract between Treasury and the contractor.

It is worth noting however that they could not put a statement in the contract which prohibited disclosure of the code under the Official Information Act. The Ombudsmen has ruled that you cannot contract out of the Official Information Act (but that would increase the chances of it being subject to a s9(2)(b) [Commercial interests] or s9(2)(ba) [prejudice the supply of such information in the future] exemption.

I think under the Copyright Act, the Crown autpmatically owns any IP of software developed for it.. And that cannot be contracted out. So Treasury owns the code (unless it was off the shelf)

Hi marty. I've taken a quick look as a non-lawyer. The closest thing I can easily find to that is section 62, but aside from not specifically applying to software, it also only applies for works that were communicated with the intent of being redistributed, or when the copyright holder might reasonably expect that to happen.

http://www.legislation.govt.nz/act/publi...

S63 also goes on to define circumstances where copyright isn't infringed by the crown if a work is transmitted for reasons of safety or national security. I'm trying to browse the act on my phone, though, which isn't easy.

Do you know of a specific post of the copyright act? If it exists and something like this were to set a precedent, I expect more than a few software development companies would suddenly start to think really really hard about how they handled government contracts, if it's still worth trying for them and how much they'd charge.

Hi marty. On a re-read this morning, I realised you may have meant section 26 about Crown Copyright, where sub-section (1) states: "Where a work is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services" ... then the Crown is the first owner of the copyright.

Again as a non-lawyer, I don't believe this applies unless there was a very loose contractual arrangement, because sub-section (6) then goes on to say "Subsection (1) applies subject to any agreement to the contrary."

http://www.legislation.govt.nz/act/publi...