1. Artefact layers

2. Intellectual Property and copyrights

An MXV artefact comprises layers which are subject to different copyrights and intellectual property rights:

• Layer 1: The semantic data model and its derived data structures, including business definitions
  
  

• Layer 2: The design standard the artefact complies with
  
  

• Layer 3: The development process used to create the artefact
  
  

• Layer 4: The softwares utilised to create the artefact
  

The artefact layers are subject to different copyrights and intellectual property rights:

• Layer 1: The semantic data model
  
  The semantic data model defines the business vocabulary and data structures.
  The model and its derived artefacts such as XML schemas are owned by the organisation which developed them, and intellectual property rights and copyrights remain with that organisation at all times.
  Your organisation chooses to which extent it wishes to share the semantic model, schemas and other artefacts.
  
  Your organisation's copyright is embedded in each generated artefact.
  
  

• Layer 2: The design standard
  
  MXV artefacts comply with industry design standards, which are applied when an artefact is created to enforce uniform design.
  For example,
  - MXV XML schemas comply as closely as possible with the OASIS UBL NDR design standard
  - Code value list artefacts comply with the OASIS Genericode design standard
  - Value constraint artefacts comply with the OASIS Context Value Association design standard
  These design standards are typically owned by a global standard setting body, such as The Organization for the Advancement of Structured Information Standards (OASIS), and are usually freely available.
  
  A portions copyright is included in each generated artefact to acknowledge the contribution of the standard setting body and its design standard.
  
  

• Layer 3: The development process
  
  The development process of MXV artefacts is partly covered by the design standard.
  Additional development processes and conventions are described in 6 development methodology documents expanding the layer 2 design standard.
  The New Zealand Ministry of Education retains the intellectual property rights in these documents, but has made them freely available subject to the conditions outlined within the documents.
  
  Each methodology document contains the Ministry's copyright clause.
  
  

• Layer 4: The softwares
  
  Various softwares are utilised to create MXV artefacts, ranging from licensed commercial software to freeware/shareware.
  Each software is subject to the respective copyright and licensing terms.
  MXV is one of these softwares, used to validate and automate a wide range of tedious and error-prone tasks covering the semantic model, artefact development, compliance with the design standard and the development methodology. MXV software applies the open design standard and development process to the semantic model. What MXV does is subject to the respective layers and applicable copyrights while the How of MXV's automation is Data Management Solutions' intellectual property and subject to copyright.
  
  A portions copyright may be included in each generated artefact to acknowledge Data Management Solution software's part in the automated development.
  
  

False allegations of copyright infringement against DMS and Juerg Tschumperlin have been distributed for over 4 years. This section provides the relevant facts surrounding these false allegations.
 

The false allegations

In 2008, the New Zealand Ministry of Education/Education Sector created the “ESDM Review Report”.  The 2008 Report existed in two versions, draft 0.1, and 1.0 (not marked as draft).  Both versions contain identical statements relating to the MXV tools developed by Juerg Tschumperlin of Data Management Solutions (DMS), alleging that the Ministry “disputes DMS’s claim to the IP” of MXV, and recommending that the Ministry “obtain documentation” (i.e. the source code) “to maintain" MXV.  These statements, released under the Official Information Act, were incorrect.


 

 
The first amicable mitigation attempt failed

In 2010 Juerg Tschumperlin became aware of the false allegations made about DMS and immediately alerted the Ministry to the errors. At the same time, Ministry staff directly involved with MXV also got hold of the Report for the first time. The Ministry accepted the allegations were false, apologised to Juerg Tschumperlin, and promised to have the offending passages in the Report removed. This did not occur, was not followed up by the Ministry, and the Report containing the same false allegations continued to be distributed between 2010 and 2012 reaching third parties outside the Education Sector, including a government client of DMS, a private sector business consulting to a range of government agencies and a private sector software company. In 2012 DMS became aware of these latest distributions and sought legal advice.
 

The second mitigation attempt is cause for concern

DMS requested information from various government agencies under the New Zealand Official Information Act (OIA) to establish the facts surrounding the creation and distribution of these false allegations.

An OIA response from the Ministry of Education identifies Mr John Fisher, Enterprise Architect at the Ministry of Education, as being the lead with overall responsibility for the Report, including the provision of information and approval of the Report:

A further OIA response identifies Mr Paul Fernyhough, now Manager at Wellington based management and technology consulting firm Tenzing Limited as the author of the Report:

Over the 8 month period prior the Report being created, DMS has sent extensive email communications to the Ministry about MXV. These emails included the initial idea and DMS's proposal to develop MXV without any obligation for the Ministry, updates on development progress, details on free trial licensing, software trial outcomes and the Ministry's decision to purchase MXV licenses. Mr John Fisher received these email communications also.

The Ministry's position:
  

To date, it appears no individual is being held accountable for the false allegations against DMS to have been made, or to allow their publication.

In 2014, six years after the false allegations were made, and after more than 18 months of legal advice, a settlement has been reached between DMS and the Ministry of Education.

The Ministry acknowledges that the allegations should not have been made given the written communications that existed at the time the Report was created.

The Ministry unreservedly accepts that the allegations contained in the Report are incorrect and confirms that it never had an intellectual property dispute with DMS or Mr Tschumperlin. It has, once again, apologised to DMS for its failure to remove the allegations from the Report and delete earlier versions as it promised to do in 2010. The Ministry has removed the offending passages in the Report version 2.0 and deleted prior versions from its system in 2012.

The settlement includes a corrective statement intended to reach the Report's recipients. Due to the Ministry not being able to determine all recipients of the Report, the Ministry has sent a corrective statement to possible recipients with the request to delete those versions of the Report and to name and forward the corrective statement to secondary recipients. One of the Ministry's obligations was to obtain written responses.

It is however likely that these allegations have reached some people who remain unaware that the Ministry has retracted these false allegations. This document intends to reach such individuals and to present the situation.

However, DMS has cause for concern in relation to the following third party responses to the Ministry's above request:

1. Ministry of Social Development (MSD)

MSD has not agreed to provide a written response.

2. Tertiary Education Commission (TEC)

TEC states it found a copy of the Report in 2014:

The Ministry has asked TEC to remove this Report on two previous occasions.  First, in 2010, and again in 2012. It appears the Ministry’s requests have been ignored by TEC and the Report continued to be held at TEC until 2014. This demonstrates that for four years the Ministry has been unable to manage the deletion of this Report within the Education Sector.

3. New Zealand Qualifications Authority (NZQA)

NZQA states "it did not find any evidence of further distributions to third parties":
 

NZQA has not explained a document DMS has obtained from the Tertiary Education Commission (TEC) showing that NZQA's Mr Martin L Rothbaum, signing as MLR, has emailed the defamatory Report to Mr Leon Bakker's Blackberry, who forwarded it to an unnamed recipient at TEC in 2011. The Report which has a "Private and Confidential" classification has been sent to this contractor's private phone.

4. Mr Leon Bakker

Mr Leon Bakker states he did not send the Report from his personal systems:

Mr Bakker, a private sector consultant contractor, has not explained a document obtained under the OIA:

5. Inland Revenue Department

The Inland Revenue Department does not confirm whether it has forwarded the Report:

The Inland Revenue Department's position makes it impossible to trace further publications of the false allegations.

The Ministry of Education is of the view that it has met its obligations. DMS however is left wondering how the above responses, which appear either evasive or inconsistent with the documents presented, can be seen as responses in good faith.

The following points are worth noting:

• The ESDM Review Report containing the false allegations has been created in 2008 by people in business units with whom Juerg Tschumperlin of DMS never had a direct or indirect reporting line.

• Those managers at the Ministry of Education, who were responsible for Juerg Tschumperlin's contract, statements of work and time sheets, have not been consulted when the Report was created.

• The Report was distributed for two years without the knowledge of Juerg Tschumperlin's managers, who rejected the allegations when they became aware of them in 2010.

• Juerg Tschumperlin would like to thank his then managers and team members for the great working relationship, in particular the Student Management Systems team and the Shared Sector Services team. Their corroboration of Juerg Tschumperlin's evidence of no wrongdoing is much appreciated, even if it could not stop the continued distribution of these allegations by others.

• On 19th December 2014 the Ministry of Education met its financial obligations of the settlement agreement by making the final payment.

• Six and a half years after the Ministry of Education and others started to distribute these false allegations across several government agencies and private sector businesses, it is time for DMS to move on. It is left to the reader to form an opinion on this matter and learn from it.