Access rights, a basic term related to Intellectual Property Rights (IPR), means those rights (e.g. licences or user rights) to use knowledge or pre-existing know-how given by the owners of the knowledge or pre-existing know-how to others.
According to article II.1.2 of the standard model Grant Agreement, an affiliated entity means “any legal entity that is under the direct or indirect control of a beneficiary, or under the same direct or indirect control as the beneficiary, control taking any of the following forms:
(a) the direct or indirect holding of more than 50% of the nominal value of the issued share capital in the legal entity concerned, or of a majority of the voting rights of the shareholders or associates of that entity;
(b) the direct or indirect holding, in fact or in law, of decision-making powers in the legal entity concerned.”
A parent company, i.e. a company holding enough percentage of the nominal value of the issued share capital of another company to control its management, should therefore not be considered as an affiliated company. Indeed, parent companies are either under the control of a beneficiary (they are in the opposite position, i.e., controlling the beneficiary) or under the same direct control.
Nevertheless, the general principle according to which beneficiaries may agree on more favourable or broader access rights also applies here. For example, beneficiaries could agree in their consortium agreement to grant access rights to affiliates other than those mentioned above, including parent companies. The IPCA Model of Consortium Agreement foresees this possibility, since it establishes a broader definition of affiliated companies, which encompasses entities controlling the beneficiary.
Access rights to another participant’s foreground or background are only to be granted if they are needed in order to carry out the project (for its implementation) or to use one's own foreground.
Access rights needed in order to implement the project shall be granted at least until the end of the project, even by the participants that leave the project before its completion.
However, access rights for use purposes of foreground (exploitation and further research) may be granted up to one year after the end of the project or the termination of the involvement of a participant in a project.
Note that the actual duration of such access rights might be negotiated by the participants concerned and agreed differently (e.g. shorter, longer period or for instance, it might be extended until the expiry of a patent).
The owner of a foreground may grant exclusive licence to a third party, provided that the other participants agree by written means to waive their access rights thereto.
Such a waiver can only be made on a case-by-case basis, and after the concerned foreground has been generated. Participants should be able to assess carefully which specific access rights they are able or willing to renounce. They should also avoid waiving broader access rights than those exactly required to allow granting such an exclusive licence.
The standard model Grant Agreement (GA) establishes provisions relating to access rights to foreground which are “minimal" provisions. The “minimal” access rights mandatory under the GA concern, on the one hand, access rights to beneficiaries and, on the other hand, access rights to affiliated entities established in a Member State or Associated country. These affiliated entities enjoy access rights to foreground under the same conditions as the beneficiary to which it is affiliated, unless otherwise provided for in the GA or Consortium agreement.
Under the mandatory regime of the GA, Non-European affiliate would not be entitled to have access rights to foreground as the provisions of the Article 50.3 of Rules for Participation and Article II.34.3 of GA refer explicit only to affiliated entities established in a Member State or an Associated country.
Nevertheless, the general principle according to which the participants may agree on more favorable or broader access rights also applies here. It is always possible to set provisions extending access rights to affiliates from outside of a Member State or Associated country in further agreements, subject to consensus of relevant project participants.
In this instance it is important to emphasize that the European Commission retains the right to object to the grant of an exclusive license to a third party established in a third country which is not associated to FP7 if it considers that this is not in accordance with the interests of developing the competitiveness of the European economy or is inconsistent with ethical principles or security considerations (Article 43 of Rules for Participation and Article II.32.8 of GA)
In case the of transfer of the whole ERC single beneficiary project, the new host institution will have no obligation towards the previous host institution concerning grant of access rights to the foreground generated after the project transfer, as the latter will be considered a third party to the project once such transfer succeeds.
Subject to the conditions established in the Grant Agreement, appointment letter or contract, the Commission and the participants shall keep confidential any data, knowledge and documents communicated to them as confidential.
When applicants send proposals to the European Commission they set out details of the work, which is intended to be carried out under the project. Many ideas are, therefore, put forward by participants when submitting their proposals to the European Commission. This information is not only disclosed to the European Commission, but also to the independent experts, who assist in the evaluation of proposals.
Even though ideas are generally not protected under intellectual property rights, this does not mean that you do not have any type of tool you may use to protect them. In fact, you may rely on confidentiality to make sure that your ideas are not disclosed to the public, that is, that the people to whom you disclose your ideas have the obligation to keep them secret (i.e. not reveal them to anyone else).
Thus, all proposals and related data are treated under the principle of confidentiality by the European Commission. Independent experts must, therefore, sign an appointment letter binding them to maintain confidentiality of any document and data received.
The Rules for Participation and the standard model Grant Agreement establish that the European Commission and participants undertake to keep confidentiality of any data, documents or other material concerning the execution of the project that has been communicated to them as confidential.
The level of confidentiality, however, may differ depending on the people to whom the data, documents or other material may be disseminated. The European Commission has established the following codes to distinguish between these different levels of confidentiality:
PU = Public
PP = Restricted to other programme participants (including the Commission Services)
RE = Restricted to a group specified by the consortium (including the Commission Services)
CO = Confidential, only for members of the consortium (including the Commission Services)
One of the requirements of inventions’ patentability is novelty. To be regarded as new, generally, an invention cannot be disclosed or made available to others before the date on which an application was filed. Moreover, there are some types of information that are not patentable, such as methods and many forms of know-how, which may only be protected if they are kept confidential.
However, such inventions and information can be disclosed to others if under confidence. A NDA is the tool that allows confidentiality obligations to be in place. Indeed, a NDA is a written agreement that establishes the conditions under which information or ideas are disclosed in confidence.
To see a checklist of the most common issues that should be considered when drafting such an agreement, please click here.
The preparation and submission of a proposal usually requires meetings and exchange of information among the project’s partners. At this point, among other issues, applicants should define the work packages and describe the research idea, which may result in the disclosure of valuable information.
To avoid any eventual misappropriation and use of such information, which could undermine its value and protection as an Intellectual Property Right (i.e. patent), it is advisable to conclude a non-disclosure agreement or NDA before entering in negotiations for the submission of a proposal.
Thus, we suggest applicants, in particular the coordinator, to explain the other partners of the project the advantages of having a NDA in place and propose a draft agreement to be negotiated before further discussions.
As any other agreement, a NDA must be adapted to the circumstances of each project. Hence, there is not a standard NDA. Nevertheless, there are some issues that in most cases should be considered by the parties involved, such as the following:
- Identification of the parties;
- Indicate the intentions of the parties in order to explain the context of the agreement;
- Identify the call and the name/acronym of the project;
- Clarify what should be considered as confidential information (e.g. all information or just information marked as “confidential”);
- Define very precisely the permitted purpose of the disclosure in order to restrict the use of the information;
- Consider the need to disclose the confidential information to employees;
- List the obligations of the party receiving the information;
- List any information considered as excluded;
- Determine the entry into force of the NDA;
- Determine the period of time of the confidentiality obligation (e.g. 3, 5 or 10 years);
- Determine applicable law and jurisdiction
Yes, it is. Before the evaluation process at the European Commission (EC), both evaluators and observers have to sign a contract with the EC that specifically includes a confidentiality clause as well as well as a no conflict of interest declaration.
They are required to commit themselves by an “appointment letter for independent experts” (based on the model given in Annex F of the “Rules for submission of proposals, and the related evaluation, selection and award procedures”), stating that they will conform to the principles outlined therein and will follow the rules and procedures set by the EC. This includes keeping all information gained during the evaluation process confidential and not retaining (or copying) any materials that pertain to proposals or the evaluation.
A Consortium Agreement refers to the internal organisation of the consortium. Depending on the area or sector of the each project and of the grade of technical complexity that are involved, the Consortium Agreement might generally contain the following:
- provisions on the governance structure of the consortium;
- technical provisions (e.g. the tasks of each party and the project schedule);
- managerial provisions (e.g. coordination and management);
- financial provisions (e.g. the distribution of the Community financial contribution, the financial plan, etc);
- provisions regarding IPR and related issues such as dissemination, use and accessibility of the results, confidentiality provisions, as well as arrangements on the settlement of disputes and liability and confidentiality.
The Consortium Agreement models are developed by different organisations concerned in the proper management of projects under FP7. The European Commission has, however, not made available any "official" model. As these models respond to different areas, they may vary in content and in particular with regard to the provisions relating to intellectual property rights. All parties should fully read and understand the model that they are going to use, confirm that it serves their interests, and adapt it to specific needs if required.
There are several models of Consortium Agreements that have been created by different entities and that may be used by participants under FP7 projects.
The European Commission, however, has not drafted any model. Indeed, it has been only made available a check list with non-binding guidance on the issues that participants may consider in their Consortium Agreements.
The Grant Agreement establishes the main rights and obligations of participants towards the European Commission and is, generally, based on models prepared to be applied in all projects. This agreement does not have, therefore, detailed provisions on the specific project and consortium.
Thus, it is highly recommended (if not mandatory) that participants sign between them a Consortium Agreement aimed to establish in detail the rules on the internal management of the consortium. This agreement shall have inter alia additional rules on dissemination, use and access rights.
When you submit your proposal it is not necessary to have a Consortium Agreement already signed between all potential participants. Generally, you will only have to conclude the agreement before signing the Grant Agreement with the European Commission (on behalf of the EU).
It is highly recommended (if not mandatory) that participants sign between them a Consortium Agreement aimed to establish in detail the rules on the internal management of their consortium.
According to the Rules for Participation, this agreement shall include inter alia additional rules on dissemination, use and access rights. In particular, and following the guidance of the European Commission in its publication “Checklist for a Consortium Agreement for FP7 projects”, the following IPR related clauses may be included in the Consortium Agreement:
(i) Ownership of foreground – to deal with the ownership of foreground developed in the project, including possible joint ownership;
(ii) Transfer of foreground – to deal with, for example, the procedure to give prior notice to other participants in the project;
(iii) Protection of foreground – to deal with, for example, possible patent application;
(iv) Use of foreground – to deal with the obligation to use the foreground commercially or in further research;
(v) Dissemination of foreground – to deal with the obligation to disseminate foreground as swiftly as possible;
(vi) Access rights – to deal with, for example, conditions and time limits.
The European Union in FP7 projects may contribute to a maximum of 100% of the total costs of activities concerning protection, dissemination and management of IPR.
The Financial Guide to FP7 projects includes examples of intellectual property activities which may be reimbursed up to 100% of eligible costs. These are “filing and prosecution of patent (and other IPR) applications, including patent searches and legal advice”.
Thus, the following costs concerning patent protection might be considered as eligible:
- patent application fees;
- expenses for patent searches;
- remuneration paid to patent attorneys or other legal practitioners with regard to the filing and prosecution of a patent.
Intellectual property activities are “other activities” in accordance with the Article II.16 of the Grant Agreement. Their costs, in order to be eligible, shall fulfill the prerequisites of the Article II.14.1 of the Grant Agreement. In particular, they must be charged during the contractual period.
Finally, bear in mind that contracting of a legal practitioner for filing and prosecution of patent may be considered to be subcontracting in accordance with the Article II.7 of the Grant Agreement.
In FP7 Euratom there are two associated specific programmes; one in the fields of fusion energy research and nuclear fission and radiation protection, the other in the nuclear field undertaken by the Commission's Joint Research Centre (JRC). The JRC has become a leading institute of nuclear research in Europe.
FP7 Euratom aims to address the major issues and challenges in nuclear research and to contribute to the further consolidation of the European Research Area (ERA) in the nuclear energy sector.
F4E is the ‘European Joint Undertaking for ITER and the Development of Fusion Energy’. It is the EU domestic agency responsible for providing Europe’s contribution for the implementation of ITER (International Thermonuclear Experimental Reactor). This international project aims to demonstrate that fusion may be a viable and sustainable source of energy for human consumption. ITER initiative is the world’s largest scientific partnership which brings together seven parties: the EU, Russia, Japan, China, India, South Korea and the United States.
F4E also supports fusion research and development initiatives through the Broader Approach Agreement (signed with Japan) which aims to complement the ITER Project, and the development of advanced technologies for the construction of demonstration fusion reactors (DEMO).
The F4E Joint Undertaking was created under the Euratom Treaty by a decision of the Council of the European Union. It was established for a period of 35 years (from 19 April 2007) and it is located in Barcelona, Spain.
For the implementation of its tasks, and in order to work together with European industry, SMEs and research organisations, F4E uses two contract mechanisms: grant agreements (grants) and procurement contracts (procurement) which are underpinned by the principles of transparency, proportionality, equal treatment and non-discrimination
Procurement contracts are awarded to contractors in order to obtain the supply of assets, the execution of works and/or the provision of services. These contracts are granted according to calls for tenders that may take one of the following forms: open procedure, restricted procedure, negotiated procedure or competitive dialogue. Procurement results in a proper commercial agreement which provides contractors with 100% of the financial contribution from F4E.
Grants are direct financial contributions that fund beneficiaries, by way of donation, for research and development actions in order to support F4E’s tasks. Co-financing and non-profit rules are mandatory in accordance with F4E’s financial regulations. In contrast to procurement contracts, grants are limited to 40% of financial contribution, the remaining part being borne by the beneficiaries.
The different funding rates between grants and procurement imply different rules for the management of IP in the related projects.
On 10 April 2007 the European Commission adopted the general model Grant Agreement to be used in research projects funded under the 7th Framework Programmes. This model Grant Agreement is applicable to the indirect actions under the Cooperation and Capacities Specific Programmes of FP7. It consists of a core text and several annexes. There is also a list of special clauses to be introduced in the Grant Agreement where necessary.
Separate model Grant Agreements have been adopted for the parts of the Cooperation (Space, Security), Capacities (Research for the benefit of SMEs) and People (Marie Curie) Specific Programmes that are under Research Executive Agency (REA) responsibility and for the Ideas (European Research Council) Specific Programmes.
The Grant Agreement establishes the respective rights and obligations of the participants with regard to access rights, use and dissemination. For those purposes, it requires the submission to the Commission of a plan for the use and dissemination of foreground.
The European Commission adopted a standard model Grant Agreement to be used in projects under the Cooperation Specific Programme of FP7. The same model is also applicable to projects under the Capacities Programme. It consists of a core text, several annexes and a list of special clauses to be introduced in the Grant Agreement where necessary.
Projects under the Cooperation (Space, Security) Specific Programme, which are under the responsibility of the Research Executive Agency (REA) do not follow the standard model, there is a specific model Grant Agreement for these projects.
The European Commission adopted a standard model Grant Agreement to be used in projects under the Cooperation Specific Programme of FP7. The same model is also applicable to projects under the Capacities Programme. It consists of a core text, several annexes and a list of special clauses to be introduced in the grant agreement where necessary.
The projects under the Capacities (Research for the benefit of SME's) Specific Programme, which are under the responsibility of the Research Executive Agency (REA) do not follow the same standard model, there is a specific model Grant Agreement for these projects.
There is a specific model Grant Agreement to be used in projects under the Ideas Programme supported by the European Research Council (ERC). It consists of a core text and several annexes. There is also a list of special clauses and a template for supplementary agreement (Legal Entity - Principal Investigator).
There is a specific model Grant Agreement to be used in projects under the People Programme (Marie Curie) conducted by the Research Executive Agency (REA). It consists of a core text, several annexes and a list of special clauses.
The Grant Agreement has the main rules concerning IP that you must follow under your project. Additionally, you should consider the provisions of the Consortium Agreement you have signed with the other participants in the project. Both agreements provide you the main framework of your IP obligations under your project.
Generally, the provisions of the Grant Agreement concerning IP can be found in Annex II. For specific projects, such as the actions for SMEs and for SMEs associations, you may also need to consider Annex III of the Grant Agreement. In addition, in some specific projects, clauses from the list of special clauses may be introduced into the core Grant Agreement.
The Framework Programmes for Research have two main strategic objectives: one is to strengthen the scientific and technological base of the European industry and the second is to encourage its international competitiveness, while promoting research that supports EU policies.
The complete name of FP7 is the 7th Framework Programme for Research and Technological Development. It spans seven years from 2007 through 2013. This programme is a reflection of the high priority of research in Europe.
Most of the funds will be spent on grants to research actors all over Europe and beyond, in order to co-finance research, technological development and demonstration projects. Grants are determined on the basis of calls for proposals and a peer review process, which are highly competitive.
In order to complement national research programmes, activities funded from FP7 must have a “European added value”. One key aspect of the European added value is the transnationality of many actions: research projects are carried out by consortia which include participants from different European (and other) countries; fellowships in FP7 require mobility over national borders. Indeed, many research challenges (e.g. fusion research, etc), are so complex that they can only be addressed at European level.
FP7 is open to support a wide range of participants, from universities, through public authorities to small enterprises and researchers in developing countries.
Potential participants can come from:
- Private companies – such as small and medium sized enterprises (SMEs), private research institutes or other industrial participants.
- Public organisations – for example, universities, regional authorities, public research organisations (PROs).
- Individual researchers – from both public and private sectors.
- Researchers and organisations from outside the European Union – whether from Candidate Countries, Associated States, International Cooperation Partner Countries (developing countries, emerging economies or industrial nations).
The "coordinator" has a very specific role amongst the participants in a given project. It has to "monitor the compliance by participants (or beneficiaries) with their obligations under the grant agreement, which includes the participants' obligations regarding IPR, dissemination and use issues."
FP7 is the natural successor of the FP6. The new FP7 was established after consultation with the research communities from both public and private sectors, economic actors and with decision takers in the European Union. FP7 is both larger and more comprehensive than its predecessors. It is also more flexible and with simplified procedures. For detailed information on the previous FP6 programme, please click here.
The duration of FP7 is longer than FP6 and it has a much larger budget. It also has a different structure, introduces the European Research Council to oversee the funding of basic research, and includes the new Joint Technology Initiatives (JTI) funding instrument. Another change is that the international dimension is integrated into the various programmes of FP7. The duration of the Framework Programme has been extended from four to seven years; FP7 runs from 2007 to 2013, while FP6 ran from 2002 to 2006. The overall budget has increased significantly for FP7.
As a general principle, FP7 is open to participants from any country in the world. However, the procedures for participation and funding possibilities vary for different groups of countries:
- EU Member States;
- Associated countries (e.g. Israel, Iceland, Switzerland);
- Candidate countries;
- Third countries.
For further information, please click here.
International Cooperation Partner Countries (ICPC) (e.g. Russia and other Eastern European and Central Asian states, developing countries, Mediterranean partner countries, Western Balkans countries) may participate in the FP7. Participants from these countries are entitled to receive funding under the same conditions as the EU Member States. The one additional requirement for the projects including ICPCs is that the determined number of participants from the EU Member States or from the Associated Countries must be included. Participation from industrialised high-income countries is also possible on a self-financing basis, with EU funding granted only in exceptional cases.
You should look at the case studies and results on the CORDIS website where you will find success stories on the FP7 and earlier programmes.
FP7 consists of four Specific Programmes:
- Cooperation – concerns collaborative research in 10 priority areas.
- Ideas – European Research Council.
- People – Human Potential, Marie Curie Actions.
- Capacities – research for the benefit of SMEs and specific activities of international cooperation.
- A fifth specific programme under the Euratom Framework Programme concerns nuclear research. The non-nuclear research activities of the Joint Research Centre (JRC) are grouped under a specific programme.
The core of FP7, representing two thirds of the overall budget, is the Cooperation programme. It fosters collaborative research across Europe and other partner countries through projects by transnational consortia of industry and academia.
The 10 Thematic Priorities within the Cooperation Programme are:
- Food, agriculture and fisheries, and biotechnology
- Information and communication technologies
- Nanosciences, nanotechnologies, materials and new production technologies
- Environment (including climate change)
- Transport (including aeronautics)
- Socio-economic sciences and the humanities
For further information, please click here.
The People Programme contains 12 types of “Actions”. The most interesting to companies are Marie Curie Industry-Academia Partnerships and Pathways (IAPPs), partnerships between the public or non-commercial sector (including universities, research institutes, NGOs) and the private, commercial research sector (including SMEs, manufacturing and other industries), based on common research. However, Marie Curie Initial Training Networks (ITNs), aimed at the initial training of researchers, may also be of interest to the industry; initial training is offered to researchers through this action in order to improve their research and complementary skills, help them join established research teams, and enhance their career prospects in both the public and private sectors.
The Capacities programme strengthens the research capacities that Europe needs if it is to become a thriving knowledge-based economy. It covers among others research for the benefit of SMEs and specific activities of international cooperation.
For further information, please click here.
The term "Intellectual Property Rights" refers to the legal rights granted with the aim to protect the creations of the intellect. These rights include Industrial Property Rights (e.g. patents, industrial designs and trademarks) and Copyright (right of the author or creator) and Related Rights (rights of the performers, producers and broadcasting organisations).
Participants are strongly encouraged to consider and tackle IPR issues as soon as possible during the preparation of their project and to negotiate any relevant questions with the other participants before starting the project. Indeed, IPR issues can affect both the way a project is conducted, and the exploitation of results after the end of a project. Moreover, certain provisions foresee a default regime if no alternative agreement has been reached.
FP7 was adopted by the European Union (EU) with clear objectives, in particular to strengthen industrial competitiveness and to meet the research needs of other EU policies. It is therefore natural that the EU shaped this funding programme with regulations, some concerning IP, aimed at better achieving those goals. Hence, participants should be familiar with the specific IP rules related to the programme in question. It is of particular importance in terms of IP to consider the following documents:
- the Rules for Participation, for the general legal framework;
- the Model Grant Agreement concerning the specific programme (by reading this document, in particular Annex II, applicants may anticipate the specific IP rules they would have to comply with in case the proposal is accepted);
- the call fiche (to verify whether there is any special clause to be included in the Model Grant Agreement related to IP);
- the Guides for Applicants applicable to the specific call which may help to identify the concrete evaluation criteria that may require the consideration of IP related matters;
- Guide to Intellectual Property Rules for FP7 Projects, which explains important aspects that participants may encounter when they are preparing and participating.
The basic regulation of issues related to intellectual property (IP) rights in a project funded under FP7 is established in the Rules for participation and, more specifically, in the Grant Agreement (essentially, Annex II), which participants conclude with the Commission in order to carry out the project. Furthermore, participants may develop this basic regime in internal agreements, particularly in the Consortium Agreement. Note that the latter cannot contradict the Grant Agreement; it can only further detail it and integrate it.
Most of the provisions can be found in Annex II, Part C, Section 1 and 2 of the Grant Agreement. However, for certain types of FP7 projects, more specific IPR provisions may be found in Annex III, such as the ones applicable to research actions for SMEs or for SME associations. In specific cases, "special clauses" may also be included in Article 7 of the core Grant Agreement with rules concerning IP. A list of all “special clauses” is available with the Model Grant Agreement.
Moreover, it is important to be aware that in addition to the standard Model Grant Agreement, separate models have been adopted for the parts of the 'Cooperation' (Space, Security), the 'Capacities' (Research for the benefit of SME's) and the 'People' (Marie Curie) Specific Programmes that are under REA responsibility, and for the 'Ideas' (European Research Council) Specific Programmes.
Knowledge, a basic term of Intellectual Property Rights (IPR), means the results, including information, whether or not they can be protected, as well as copyrights or rights pertaining to such information following applications for, or the issue of, patents, designs, plant varieties, supplementary protection certificates or similar forms of protection.
Background is information and knowledge (including inventions, databases, etc.) held by the participants prior to their accession to the Grant Agreement, as well as any intellectual property rights which are needed for carrying out the project or for using foreground.
Foreground means the results, including information, materials and knowledge, generated in a given project, whether or not they can be protected. It includes intellectual property rights (such as rights resulting from copyright protection, related rights, design rights, patent rights, plant variety rights, rights of creators of topographies of semiconductor products), similar forms of protections (e.g. sui generis right for databases) and unprotected know how (e.g. confidential material).
Thus, foreground includes the tangible (e.g. prototypes, micro-organisms, source code and processed earth observation images) and intangible IP results of a project. Results generated outside a project (i.e. before, after or in parallel with a project) do not constitute foreground. Results generated in parallel with a project are often informally referred to as "sideground".
In some cases the Grant Agreement foresees that third parties may carry out some work in the project, for example as subcontractors, affiliates or members of a joint research unit. Nevertheless, even in these situations third parties do not become participants.
A department or university faculty can be a participant in a project if it is considered as a legal entity. Nevertheless, when a department or university faculty (with no legal entity status) participates in a project, the participant will be considered to be the legal entity to which the department or university faculty in question belongs, that is, the private company, university, institution or organization.
Partners acting together under the implementation of the same project form a consortium. Consortium members conclude amongst themselves an agreement (consortium agreement) that allows them to determine detailed provisions necessary to carry out their project. It shall also include rules regarding the settlement of internal disputes between the consortium members. Depending on the arrangements of all consortium members, the jurisdiction chosen to settle disputes can be a national court or an alternative dispute resolution mechanism such as mediation or arbitration. If arbitration is chosen, the consortium agreement will have to determine some or all characteristics of the procedure to be followed. Partners themselves choose the competent jurisdiction for the conflicts arising under, out of or relating to the consortium agreement.
It is, furthermore, advisable to set rules regarding the settlement of internal disputes between potential participants already in the proposal phase. In the proposal phase potential project partners develop ideas for joint research activities and already at this stage certain disputes regarding Intellectual Property may arise. In order to be prepared for such eventuality it is recommended to conclude an agreement which defines the framework of the negotiations between applicants and determine competent jurisdiction in case of a dispute (e.g. a memorandum of understanding). Depending on the intentions of the potential project partners, the jurisdiction chosen to settle this kind of dispute can be a national court or an alternative dispute resolution mechanism such as mediation or arbitration.
The Ideas programme will support “frontier research” solely on the basis of scientific excellence. Research may be carried out in any area of science or technology, including engineering, socio-economic sciences and the humanities. In contrast with the Cooperation programme, there is no obligation for cross-border partnerships. Projects are implemented by “individual teams” around a “principal investigator”. The programme is implemented via the new European Research Council (ERC). It is primarily targeted at academics.
Marie Curie Industry-Academia Partnerships and Pathways help commercial and non-commercial research organisations work together. Partners include universities and companies of all shapes and sizes. Focussing on joint research projects, IAPPs aim to boost skills exchange between the commercial and non-commercial sectors.
To qualify for an IAPP, your proposal must include one or more universities or research centres, and one or more enterprises. The industrial partners must be operating on a commercial basis. An IAPP project proposal must come from partners in at least two different EU Member States or Associate Countries. Partners from Third Countries can also join in, but only if enough EU members or associates are also represented in the partnership.
The specific model Grant Agreement applicable in Marie Curie actions establishes in its Annex II the main IPR rules applicable to beneficiaries. In particular, Part C of this annex lays down provisions on foreground and access rights, while in Part A you can find the relevant provision on confidentiality.
It is also important to consider Annex III, since it defines the basic framework for the relation between the beneficiaries and researchers, as well as the associated partners. Please note that you must use the specific model of Annex III available for your action.
Pursuant to the Grant Agreement, beneficiaries have to make sure that researchers enjoy, on a royalty-free basis, access rights to the background and foreground in order to allow them to develop their work under the project. However, these access rights are granted on a “need” basis, which means that they must be granted only if they are necessary for researchers to be able to carry out their research under the project.
In case there is a restriction that might affect the granting of those access rights, researchers must be informed as soon as possible.
In Marie Curie actions, beneficiaries must sign written agreements with the researchers they appoint under the project. This agreement, which must be in accordance with the provisions of the Grant Agreement, is intended to determine the conditions of implementation of the project, as well as the rights and obligations of both the researcher and the beneficiary under the project. The agreement is, therefore, a complement to the Grant Agreement and, in particular, its Annex III.
In terms of Intellectual Property related issues, the Grant Agreement establishes that this agreement shall specify, in particular, the access to the background, the use of foreground, publicity and confidentiality. Thus, it is common to see in these types of agreements clauses concerning the transfer of ownership of the results generated by researchers to the beneficiary, since under the Grant Agreement the results of the projects shall belong to beneficiaries. Confidentiality clauses are also very common in these agreements, since beneficiaries must make sure that researchers also comply with the same confidentiality obligations imposed to the concerned beneficiary.
Pursuant to the Grant Agreement, beneficiaries are bound by confidentially obligations. Such obligations include, for example, the following commitments:
a) to preserve the confidentiality of any data, documents or other material that is identified as confidential in relation to the execution of the project (“confidential information”) during the project and for a period of five years after its completion or any other period thereafter as established in the Consortium Agreement;
b) where confidential information was communicated orally, to confirm its confidential character in writing within 15 days after disclosure;
c) to use the confidential information only in relation to the execution of the project unless otherwise agreed with the disclosing party.
These obligations are also extended to researchers, since the Grant Agreement clearly establishes that beneficiaries shall ensure that researchers have the same rights and comply with the same obligations as the concerned beneficiary. For this reason, the agreement signed between researchers and the appointing beneficiary generally includes a clause concerning confidentiality.
According to the model Grant Agreement foreground shall be the property of the beneficiary carrying out the work generating that foreground. Furthermore, according to the model Grant Agreement foreground means the results, including information, whether or not they can be protected, which are generated under the project. Such results include rights related to copyright; design copy rights; patent rights; plant variety rights; or similar forms of protection.
The results/Intellectual Property generated by the researcher under the project shall, thus, belong to the beneficiary who is considered to be his employer during the secondment period in the host beneficiary's premises.
It is, furthermore, possible that the researcher employed and dispatched by one beneficiary, together with employees of the host beneficiary, creates jointly some results. In such case, the ownership shall be jointly as well. Beneficiaries in such case may create their own regime on the allocation and the terms of exercising the ownership of foreground or agree on an alternative solution (e.g. a single owner with favourable access rights for the other beneficiary that transferred its ownership share).
It is a good practice to include in the Consortium Agreement or Partnership Agreement a clause containing rules for allocation, terms of exercising and management of ownership of the project results within the secondment period.
In Marie Curie actions, beneficiaries are the owners of the project’s results (unless otherwise agreed). These persons are the entities signing the Grant Agreement with the European Union and therefore entitled to the rights and obligations under this agreement. Thus, researchers do not have ownership of the project’s results, including any intellectual property rights such as a patent.
For this reason, often beneficiaries request the researchers to sign an agreement dealing with the transfer of rights from the researcher to the beneficiary, in order to make sure that the beneficiary complies with its obligations under the Grant Agreement.
When beneficiaries sign the Grant Agreement with the European Union they agree to provide the researcher with access rights, on a royalty-free basis, to the background and to the foreground, if that background or foreground is needed for his/her execution of the research project.
This means that researchers can use, for free, background and foreground if they need to use it with the purpose to carry out their tasks in the project. Hence, access rights of researchers over the project’s foreground are limited to the lifetime of the project.
Nevertheless, the obligations under the Grant Agreement are minimal and consequently additional access rights may be granted to researchers. Yet, those additional access rights would have to be negotiated between the researcher and the beneficiary owning the results.
Foreground resulting from a project is owned by the participant generating it. For further details, applicants should read the General Conditions of the Grant Agreement and related documents. When Foreground is generated jointly (i.e. where the separate parts of some result cannot be attributed to different participants), it will be jointly owned, unless the participants concerned agree on a different solution.
Where several participants have jointly carried out work generating foreground and where their respective share of the work cannot be ascertained, they shall have joint ownership of such foreground.
Joint owners must agree among themselves on the allocation and the terms of exercising the ownership of the foreground in accordance with the terms of the Grant Agreement. In the absence of such an agreement (or pending its conclusion), a default joint ownership regime generally applies.
Transfers of ownership of foreground are allowed, although the obligations regarding that foreground must be passed on to the transferee. In principle, as long as the participant concerned is required to grant access rights, notification must be given to the other participants, which may object within a specified period. However, they may agree in advance that no prior notification is necessary with regard to a specifically identified third party.
The owner of foreground may transfer it to any third party, subject to the following obligations:
(i) that it passes on to the assignee (i.e. new owner) its obligations concerning dissemination, use and access rights over that foreground;
(ii) that it ensures that the assignee is under the obligation to also pass on to any subsequent assignee the above mentioned obligations;
(iii) that it gives prior notice to the other participants and, in some cases, to the European Commission.
Before the envisaged transfer takes place, you have to inform the other participants about your intention to transfer the ownership of the foreground you own. This communication must also include sufficient information concerning the identity of the assignee to allow the other participants to exercise their access rights directly to the new owner of the foreground. All this information is communicated to the other participants at least 45 days before the transfer of ownership. Please note, however, that a different notice period may be agreed by participants through a written agreement, often the Consortium Agreement.
Such prior notice is not required, however, in the following cases:
(i) agreed transfers to a specifically identified third party (article II.27.2 of the Grant Agreement);
(ii) overriding confidentiality obligations (article II.27.2 of the Grant Agreement).
There is no obligation to notify the European Commission before an intended transfer of foreground’s ownership takes place. However, in some projects a special clause may be introduced in article 7 of the Grant Agreement in order to establish the obligation of such a notification when the owner of the foreground intends to transfer it to a third party established in a non-associated country.
Nevertheless, according to the Rules for Participation, “participants shall ensure that the Commission is informed of any event which might affect the implementation of the indirect action or the interests of the Community.” Additionally, the Commission has the right to object to a transfer of ownership of foreground to a third party established in a third country not associated to FP7. Thus, even though it may not be mandatory, it is advisable to inform the Commission of an intended transfer, in particular when the third party is in a non-associated country.
In FP7 there is a general rule establishing that the foreground generated jointly by the participants will be jointly owned. This is stated both in the Rules for Participation (RfP) and in the Grant Agreement (GA). In case of joint ownership, the joint owners shall establish an agreement regarding the allocation and terms of exercise of that joint ownership. Joint owners may do it by incorporating appropriate provisions in their CA regarding joint ownership or entering into an additional joint ownership agreement. In absence of such an agreement, a default joint ownership regime applies. The joint owners may also agree not to continue with joint ownership but decide on an alternative regime, e.g. appoint a single owner and simultaneously establish more favourable access rights for the remaining beneficiaries that transferred their ownership share or any other fair counterpart.
Participants in the collaborative research projects are usually free to decide on the research results ownership regime. Sole ownership is an option when one participant generates a project result. Alternatively, joint ownership may occur when participants work together upon the results and the impact therein may not be clearly determined. In such cases participants should agree on the terms of the joint ownership, preferably before the project starts and in a separate agreement, which shall cover at least issues outlined below:
- Parties: identification of the participants - joint owners;
- Object of the contract: the joint ownership of the project results (foreground);
- Shares: assignment of shares within the joint ownership;
- Shares split equally among all joint owners or
- Shares split in proportion to the joint owners contributions;
- IP management: indication of the partner responsible for filing and maintaining (including the costs incurred) of the IP rights over the foreground;
- Protection of rights: obligation imposed on all participants to monitor and report any infringements of the foreground; indication of the partner empowered to conduct legal actions for protection of the foreground;
- Conditions of the use of the foreground;
- Use in further research: conditions for use of the foreground for further research carried out with third parties, i.e. joint owners may be required to inform each other of such plans and sign respective confidentiality agreements with the third parties;
- Individual exploitation: conditions for exploitation of the common foreground individually in participant’s own commercial activities;
- Licensing: possibilities to license (sublicense) the common foreground. This possibility may be totally restricted (i.e. licensing upon agreement of all joint owners) or subject to certain conditions;
- Transfer: Determining whether and under what conditions a joint owner may transfer its share to third parties. The rest of the joint owners may reserve the right to be informed of any such plans and/or be given a right to object such transfer;
- Additional clauses: standard contractual matters, i.e. applicable law, jurisdiction or alternative dispute resolution systems.
Joint ownership may cause conflicts between co-owners, which usually takes place if they fail to define in detail the rules with respect to their co-owned IP. Even though most countries provides for basic rules governing joint ownership, these rules may not be sufficient to safeguard the interests of all the participants coming from different jurisdictions. It is therefore essential to have a joint ownership agreement (or joint ownership clauses in the consortium agreement) that would clearly stipulate the jointly owned IP.
Where knowledge created in FP projects is capable of industrial or commercial applications, its owner shall provide for its adequate and effective protection, in conformity with relevant legal provisions, including the contract and the Consortium Agreement, and having due regard to the legitimate interests of the contractors concerned.
Valuable foreground should be protected. Protection is not mandatory in all cases, although the decision not to protect foreground should preferably be made in consultation with the other participants, which may wish to take ownership. If valuable foreground is left unprotected, the Commission may take ownership.
According to the Rules for Participation and the standard model Grant Agreement, foreground resulting from the project is owned by the participant “carrying out the work generating that foreground”. In case participants have carried out the work jointly and their respective share cannot be ascertained, such foreground is generally jointly owned.
Maintaining records, such as laboratory notebooks, illustrating the progress of the creation of results is generally the most practical and effective way to easily demonstrate that you carried out the work generating the foreground. In addition, those laboratory notebooks may assist you in case you need to define your share of the work performed in the creation of a jointly owned foreground.
The standard model Grant Agreement (GA) does not establish the obligation to formally inform or consult the other participants before taking measures to protect the foreground (for example by filing a patent application) or before deciding not to protect it. Nevertheless, it is advisable to inform them in advance, so they be in a position to express possible legitimate interests. Furthermore, Article III.28.3 states explicitly that, where a participant does not intend to protect its foreground, it may first offer to transfer it to another participant or even to certain third parties, which may consider it worthwhile protecting such piece of foreground.
The commitment to provide such information and the terms under which it should be done by participants may be included in detail in the Consortium Agreement or other further agreement.
In the proposal phase potential participants develop ideas for joint research activities. Potential project partners should know what knowledge they each bring, what they may need from others, what the state of the art is in the field of the project, and should develop a strategy on protection, use and dissemination of the future results. Such activities require discussions, exchange of information and ideas between the potential participants. Exchanging information with other potential partners is, thus, a necessity while planning a project proposal.
To avoid any eventual misappropriation and use of such information it is therefore advisable to conclude a non-disclosure agreement (also known as confidentiality agreement) before entering in negotiations for the submission of the proposal. This agreement establishes the conditions under which partners disclose information in confidence. Confidentiality obligations may be also included in a so called memorandum of understanding (MoU). This agreement defines the framework of the negotiations between applicants and is generally concluded in the very beginning of the negotiations for submitting a proposal.
Yes. They can.
However prior notice about the intention to transfer the foreground must be given to the other project partners together with sufficient information concerning the future owner so as to permit them to exercise their access rights. Transfer of ownership is generally allowed, as long as the obligations regarding that foreground are passed on to the transferee.
Where a participant does not intend to protect a piece of foreground, it should firstly offer to transfer it to other partners. Whether none of the participants intend to protect foreground, they might transfer it to third parties (the inventor, for instance) which may consider worthwhile protecting it, rather than leaving it unprotected and available for use by competitors (Article 44.2 of the Rules for Participation and Article II.28.3 of the Standard Grant Agreement)
These issues may be covered in detail within the consortium agreement or through specific separate arrangements.
Where foreground is capable of industrial or commercial application, it must be protected in an adequate and effective manner by its owner.
However, in case a participant decides not to do so or to abandon protection, it is advisable to inform the other participants in the project “so that they be in a position to express (and substantiate) possible legitimate interests… These issues may be covered in detail within the consortium agreement or through specific separate arrangements” (in Guide to Intellectual Property in FP7).
The European Commission must also be informed so as to be able to assume ownership of the concrete foreground and take measures to protect it on behalf of the European Union, with the consent of the participant concerned.
Another option that participants may consider is to first transfer the foreground to the other participants or to third parties, along with the associated obligations, who may wish to protect it instead.
The aim is to strengthen the “innovation capacity” of small and medium-sized enterprises (SMEs) in Europe and their contribution to the development of new technology based products and markets. The programme will help them outsource research, increase their research efforts, extend their networks, better exploit research results and acquire technological knowhow, bridging the gap between research and innovation.
SMEs represents 99% of all enterprises in Europe; they contribute more than two thirds of European GDP and provide 75 million jobs in the private sector. They are therefore key to the implementation of the renewed Lisbon strategy for economic growth and employment.
The European Commission in its Recommendation 2003/361/EC of May 6, 2003 established the following criteria, which enterprises have to fulfill to be considered as SMEs.
Balance sheet total
≤ € 50 million
≤ € 43 million
≤ € 10 million
≤ € 10 million
≤ € 2 million
≤ € 2 million
Use means the direct or indirect utilisation of knowledge in research activities or for developing, creating and marketing a product or process or for creating and providing a service.
Dissemination means the disclosure of knowledge by any appropriate means (e.g. publications, conferences, workshops, web-based activities). Each participant shall ensure that the foreground it owns is disseminated as swiftly as possible. However, any dissemination (including publications or release of information on web pages) should be delayed until a decision about its possible protection has been made (through IPR or trade secrets).
Proposals will have to contain a "plan for the use and dissemination of foreground" to show that the knowledge generated will be taken through to application. This plan will be updated as a part of the periodic and final reports to reflect the evolving intentions for the protection, use and dissemination of the knowledge generated under the project.
Any dissemination (including publications on web-pages) should be delayed until a decision about its possible protection has been made (through IPRs or trade secrets).
The other participants may object to the dissemination activity if their legitimate interests, in relation to their foreground or background, could suffer disproportionately great harm. Therefore, no dissemination of foreground may take place before a decision is made regarding its possible protection.
The other participants must be given at least 45 days prior notice in writing of any planned dissemination activity (including new web-pages divulging any results obtained), together with sufficient information about the intended dissemination.
The participants may agree in writing (for example in the consortium agreement) on different time-limits to those set out above, which may include a deadline for determining the appropriate steps to be taken to ensure that for example publications relating to a specific piece of foreground are not postponed or delayed unreasonably.
Under FP7, the Commission only needs to be notified ex-ante of dissemination intentions when the foreground to be disseminated is capable of industrial and commercial application and has not been formally protected. Where this is the case, no dissemination activities can take place before the Commission has been informed, in order to give the Commission an opportunity to protect that foreground on its own behalf.
According to article II.30.4 of the standard model grant agreement, participants must include in all dissemination actions the following statement acknowledging the financial support of the European Union:
The research leading to these results has received funding from the European Union's Seventh Framework Programme (FP7/2007-2013) under grant agreement n° xxxxxx.
In case the dissemination is provided in another language, participants should use the correspondent translated version of the sentence. In annex V of the Guide to Intellectual Property Rules in FP7 projects, you can find the translations of the statement in European Union languages other than English.
Moreover, in case of publicity material participants must in addition display the European emblem and specify that the content “reflects only the author’s views and that the Union is not liable for any use that may be made of the information contained therein” (see article II.12.1 of the standard model grant agreement).
In the EU, websites are works which are usually protected by copyright, provided that they are the result of the creativity of their author(s), that is, that they are original. Copyright protection arises automatically upon the creation of the work, and grants its owner several exclusive rights such as the rights to copy, to distribute, and to communicate the work to the public.
Please note that the individual works which constitute the website’s contents (such as articles, written reports, guides, videos) will also be individually subject to copyright protection, provided that they fulfil the requirement of originality. Databases included in a website can also be subject to copyright protection if they comply with this requirement of originality. Nevertheless, depending on the applicable national law, a database which does not present an original character may still be protected, under a separate protection regime (a sui generis database right).
As long as your website meets the requirements for copyright protection (in particular a requirement of originality), copyright will arise automatically. Therefore, although it is good practice to include a copyright notice on your webpage, the existence of copyright will not depend on this notice. A copyright notice is, however, useful for the purpose of informing website users of the existence of rights over the content (and thus preventing unintentional infringements from occurring); in certain jurisdictions, it will also be useful in court as a means of proof in case of an infringement dispute.
A copyright notice is usually presented as follows: © [name of copyright holder] [year of creation – current year] [with a possible additional mention such as “All rights reserved”].
Please note that an EU-funded project or a consortium does not have legal personality, and therefore cannot as such be legally considered a copyright holder. Therefore, it is advisable to mention the name of the project partner(s) which hold the copyright in the website, rather than the name of the project. However, if many project partners are involved and are all co-owners, an alternative could consist in mentioning “[name of project] partners” as the right holders, in the copyright notice.
The OpenAIRE initiative (Open Access Infrastructure for Research in Europe) aims to support the implementation of the Open Access policies of the European Commission and the European Research Council. The OpenAIRE portal provides extensive information, statistics and explanations about open access in Europe and allows research participants to locate their open access directory, deposit their publications or data therein, and link research results to funding. OpenAIRE also provides an efficient search tool for publications, data, and projects as well as a very thorough support service (FAQs, glossary, tutorials, guides, useful links, and a helpdesk).
You can access the OpenAIRE website here: https://www.openaire.eu/