Extracted from the PASCAL contract
PART C INTELLECTUAL PROPERTY RIGHTS
II.32 - Ownership of knowledge
- Knowledge shall be the property of the contractor carrying out the work leading to that knowledge.
- Where several contractors have jointly carried out work generating the knowledge and where their respective share of the work cannot be ascertained, they shall have joint ownership of such knowledge. The contractors concerned shall agree amongst themselves the allocation and terms of exercising ownership of that knowledge in accordance with the provisions of this contract.
- If personnel working for a contractor are entitled to claim rights to knowledge, the contractor shall take steps or reach appropriate agreements to ensure that these rights can be exercised in a manner compatible with its obligations under this contract.
- Where a contractor transfers ownership of knowledge, it shall take steps or conclude agreements to pass on to the assignee its obligations under this contract, in particular regarding the granting of access rights, dissemination and use of the knowledge. As long as the contractor is required to grant access rights, it shall give at least 60 days prior notice to the Commission and the other contractors, of the envisaged assignment and the name and address of the assignee.
- The Commission or the other contractors may object within 30 days of notification to such a transfer of ownership. The Commission may object to transfer of ownership to third parties, in particular to those not established in a Member State or an Associated State, if such a transfer is not in accordance with the interests of developing the competitiveness of the dynamic, knowledge-based European economy or is inconsistent with ethical principles. The other contractors may object to any transfer of ownership, if that transfer would adversely affect their access rights.
II.33 - Protection of knowledge
- Where knowledge is capable of industrial or commercial application, its owner shall provide for its adequate and effective protection, in conformity with relevant legal provisions, including this contract and any consortium agreement, and having due regard to the legitimate interests of the contractors concerned. Details of any such protection sought or obtained shall be included in the plan for using and disseminating the knowledge.
- Where a contractor does not intend to protect its knowledge in a specific country it shall inform the Commission. Where a contractor intends to waive the protection of its knowledge, the Commission shall be informed at least 45 days prior to the corresponding deadline. In such a case and where the Commission considers it necessary to protect such knowledge in a particular country, it may, with the agreement of the contractor concerned, adopt measures to protect the knowledge. In this event, and as far as that particular country is concerned, the Community shall take on the obligations regarding the granting of access rights in the place of the contractor. The contractor may only refuse if it can demonstrate that its legitimate interests will be significantly impaired.
- A contractor may publish or allow the publication of data, on whatever medium, concerning knowledge it owns provided that this does not affect the protection of that knowledge. The Commission and the other contractors shall be given 30 days prior written notice of any planned publication. If, before the end of this period, the Commission and/or the other contractors so request, a copy of this data shall be communicated to them within 30 days after receipt of such request. The Commission and the other contractors may object to the publication within 30 days after receipt of the data envisaged to be published, if they consider that the protection of their knowledge would be adversely affected by this publication. The planned publication shall be suspended until the end of this consultation period. In the absence of any objection within the above-mentioned period, it is deemed that the Commission and the other contractors agree. The consortium agreement may specify the practical details of any such right to object.
II.34 - Use and dissemination
- If dissemination of knowledge would not adversely affect its protection or its use, the contractors shall ensure that it is disseminated within a period of two years after the end of the project. Should the contractors fail to do so, the Commission may disseminate the knowledge. In so doing, the Commission and the contractors shall take particular account of the following factors:
- the need to safeguard intellectual property rights;
- the benefits of swift dissemination, for example in order to avoid duplication of research efforts and to create synergies between projects;
- the legitimate interests of the contractors.
II.35 - Access rights
- The general principles relating to access rights are the following :
- Access rights shall be granted to any of the other contractors upon written request. The granting of access rights may be made conditional on the conclusion of specific agreements aimed at ensuring that they are used only for the intended purpose, and of appropriate undertakings as to confidentiality. Contractors may also conclude agreements with the purpose of granting additional or more favourable access rights, including access rights to third parties, in particular to enterprises associated with the contractor(s), or specifying the requirements applicable to access rights, but not restricting the latter. Any agreement providing for access rights to contractors and/or third parties must ensure that the potential access rights for other contractors are maintained. Such agreements shall comply with the applicable competition rules;
- The Commission may object to the grant of access rights to third parties, in particular to those not established in a Member State or an Associated State, if such grant is not in accordance with the interests of developing the competitiveness of the dynamic knowledge-based European economy, or is inconsistent with ethical principles. Contractors shall ensure that where any potential grant of access rights to knowledge is not in accordance with these interests, the Commission shall be given 30 days prior written notice of plans to provide such access rights to third parties;
- Access rights to pre-existing know-how shall be granted provided that the contractor concerned is free to grant them;
- A contractor may explicitly exclude specific pre-existing know-how from its obligation to grant access rights, by means of a written agreement between the contractors established before the contractor concerned signs the contract or before a new contractor joins the project. The other contractors may only withhold their agreement if they demonstrate that the implementation of the project or their legitimate interests will be significantly impaired thereby;
- Except where the contractor granting access rights so agrees, such rights shall confer no entitlement to grant sub-licences.
- Access rights for execution of the project are the following:
- Contractors shall enjoy access rights to the knowledge and to the pre-existing know-how, if that knowledge or pre-existing know-how is needed to carry out their own work under that project. Access rights to knowledge shall be granted on a royalty-free basis. Access rights to pre-existing know-how shall be granted on a royalty-free basis, unless otherwise agreed before signature of the contract;
- Subject to its legitimate interests, the termination of the participation of a contractor shall in no way affect its obligation to grant access rights to the other contractors pursuant to the previous sub-paragraph until the end of the project.
- Access rights for use of knowledge are the following:
- Contractors shall enjoy access rights to knowledge and to the pre-existing know-how, if that knowledge or pre-existing know-how is needed to use their own knowledge. Access rights to knowledge shall be granted on a royalty-free basis, unless otherwise agreed before signature of the contract. Access rights to pre-existing know-how shall be granted under fair and non-discriminatory conditions to be agreed;
- Subject to the contractors' legitimate interests, access rights may be requested under the conditions laid down in the previous paragraph until two years after the end of the project or after the termination of the participation of a contractor, whichever falls earlier, unless the contractors concerned agree on a longer period.
II.36 Incompatible or restrictive commitments
Contractors shall be informed as soon as possible by the contractor required to grant access rights of any limitations to the granting of access rights or of any restriction which might substantially affect the granting of access rights, as the case may be.