NZQA could be usurping property rights or it could have made a typo, but the former option makes a better headline and seems much more likely as well. NZQA released an update on the NZ Qualifications Framework (NZQF) implementation last Tuesday and I’ve provided an excerpt from p.14 below. (NB This probably just refers to L1-6 quals.)

What will be included on the NZQF?

All existing quality assured qualifications will be included on the NZQF to be launched before 1 July 2010.

How will a qualification be defined?

All qualifications listed on the NZQF will be nationally recognised, awarded by the accredited provider and can be endorsed with the logo of the NZQF. Qualifications will be in the public domain. This means that qualification developers will own the training pathway and/or programmes of study they develop leading to the qualification, but not the qualification itself.

The issue is that existing provider qualifications are owned by, well, providers (national qualifications are owned by NZQA) but as of 1 July 2010 they will apparently magically fall into the public domain. I’m not sure that NZQA can do this legally and I certainly wouldn’t advise them to do it by just announcing it a few weeks beforehand.

NZQA has probably decided that, under its new system, developers will sign away their rights to qualifications when a new or reviewed qualification is approved. And they could do that going forward (with NZQA approval being a gateway to public funding, how much will people really argue?), but current course approval documents do not hand ownership across to NZQA. The KiwiQuals policy document also has the following statement on p.6, which clearly states that copyright lies with providers for non-national (and some NZ) qualifications.

NZQA will continue to hold the copyright to national qualifications and unit and achievement standards. Qualification developers may hold the copyright to New Zealand qualifications, but they will still need to be accessible in the manner outlined in Section Four. The developers of other qualifications will continue to hold the copyright to the qualifications that they develop.  

So NZQA is shifting its currently stated policy on ownership with no real warning and no real explanation. The issue is not even highlighted for feedback in their consultation document. It seems quite an extraordinary approach to take and I remain quite uncertain what legal power NZQA has to seize property – and it doesn’t matter whether we’re talking about public or private organisations, as it is still a seizure of property from one organisation to another.

I’d be interested to hear more from providers and NZQA about this issue and I expect it will come up under consultation. One complication would be that this could conceivably lead to NZQA taking over the ownership of international qualifications offered in NZ – what would City and Guilds think of that?

Now NZQA could, and probably will, argue that they’re only putting part of the qualin the public domain, and that it’s necessary to support their broader reforms. They may well be right, but they need to make a case for this sort of thing from the start, not just assert it. A lot of the problem probably comes from announcing concepts before they’ve signed off on the detail.

(Note: Anyone interested in the broader issue of “regulatory takings” and associated compensation might be interested in a paper by my brother, Kevin Guerin, written for The Treasury in 2002. It has an excellent overview of the area - I’m not dragging him into the debate, as it’s just a background paper.)