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.