The general Model Grant Agreement (MGA) in articles 25.4 and 31.4 foresees access rights only for affiliated entities established in a Member State or in an associated country. However, beneficiaries are free to agree on more favourable or broader access rights, e.g. access rights to affiliated other than those mentioned above, including non-European affiliated entities.
Access rights to background and results for the implementation of the project shall be given to other beneficiaries until the end of the project, even by the participants that leave the project before its completion.
On the other hand, requests for access rights to background and results from other beneficiaries for exploiting their own results shall be made up to one year after the end of the project.
Note that the actual duration of all access rights might be negotiated by the participants concerned and agreed differently (e.g. shorter, longer period - for instance, it might be extended until the expiration of a patent obtained on a project result).
According to article 2.1(2) and in conjunction with the article 8.2 of the Rules for Participation, an affiliated entity means any legal entity that is:
-under the direct or indirect control of a participant, or
-under the same direct or indirect control as the participant, or
-directly or indirectly controlling a participant.
Pursuant to this definition, a parent company should be considered as an affiliated company and thus enjoy access rights to project partners' background and results, but only if these rights are needed to exploit the results generated by its daughter company. It is to be noticed that this approach is significantly different from the one used in FP7 projects (Article II.1.2 of the model Grant Agreement for FP7), according to which a parent company was not considered as an affiliated entity.
Under the scope of H2020 Access Rights mean licenses and user rights to another participant’s results or background. They allow beneficiaries to benefit from each other’s resources, and consequently taking full advantage of the collaboration.
It should be taken into account that as established in the Model GA, access rights to another beneficiary’s results and/or background are only to be granted if the requesting beneficiary needs such access in order to carry out its part of the project or to exploit its own results. Moreover, it is to be noticed that, in order for the beneficiaries to exercise their access rights, this must be requested in writing.
Negotiating a potential project proposal will most probably involve exchanging important information, which can result in the disclosure of your ideas, know-how, plans or techniques. Ensuring that confidentiality obligations are duly put into place will allow you to safely disclose know-how and information which, although not protectable by IP rights, brings a commercial/economic/strategic value to your organisation. Furthermore, putting confidentiality obligations in place will allow you to disclose potentially patentable information to your partners without ruining the novelty requirement at the basis of a patent application.
For this reason, it is always very much advisable for potential project partners to agree on appropriate non-disclosure and confidentiality obligations before the negotiations start, by signing a non-disclosure agreement (NDA). An NDA will set out procedures for the definition and handling of all confidential information during the negotiations. It will also allow you and your partners to define the purpose for which such information is shared and can be used, and will allow you to strictly regulate and/or prevent any further disclosure or use.
You may alternatively include confidentiality and non-disclosure obligations in a broader document, such as a memorandum of understanding (MoU), which is a document defining the framework of negotiations between partners.
Yes. The European Commission treats all proposals received as confidential, as well as any related information, data and documents received from each applicant. The whole process of handling and evaluating proposals is carried out in compliance with strict confidentiality rules, and proposals are archived under secure conditions at all times.
Similarly, external experts involved in the review of project proposals are also bound by confidentiality obligations. Evaluators, observers and other experts have to sign a contract with the European Commission, including a code of conduct which sets forth very strict confidentiality obligations.
We are several partners involved in the preparation of a project proposal. For this purpose, we have signed a MoU/NDA. What happens if a new entity joins the partnership? Should we revise the MoU/NDA? Can we sign a separate MoU/NDA only with the new organisation and just inform the other parties? Alternatively, could bilateral MoU/NDAs between the main applicant and each individual partner be enough?
In case a new entity joins the partnership formed in relation to the project proposal, this entity cannot automatically become a party to the agreements already in place (NDA and/or MoU). Two options are possible to include this new partner as a party:
- The first option is to amend the whole agreement, which will in principle require the signature of all parties.
- An easier option could be the signature by the new partner and the coordinator of an accession form. The advantage of an accession form is that it does not require the signature of all partners all over again: the coordinator informs them all and signs the form if everyone agrees. This option is possible provided that the coordinator has a mandate to do so from the other partners.
We would however advise against the solution of concluding bilateral MoU/NDAs between the coordinator and each partner. Legally speaking indeed, there is a difference between having a global NDA/MoU between all partners (where each signatory is bound to respect the confidential information disclosed by everyone else, and protected against disclosures to anyone else), and having separate agreements only signed by the coordinator. While these seem easier to implement, they do not create the same contractual obligations amongst the parties. In that case, the various partners would be bound to confidentiality clauses only to the coordinator, not amongst themselves. They would not be directly liable to the other partners in case they breach their confidentiality obligations, and vice versa. This may make enforcement matters difficult; for this reason we would recommend sticking to a single agreement.
Further regulation of IP related matters is not obligatory but strictly recommended for the consortium partners. The following IP related issues may be considered in the Consortium Agreement:
(i) Confidentiality – mechanisms for marking information as confidential, use of confidential information, penalties for a breach of confidentiality provisions, etc;
(ii) Background selection- a list of background to be brought to the project (and/or exclusion of assets which will not be brought to the project);
(iii) Ownership/Joint ownership of results – management of the ownership of the results developed in the project, including possible joint ownership and transfer of ownership;
(iv) Protection of results – mechanisms; costs sharing; etc.
(v) Exploitation and/or dissemination of results
(vi) Access rights – scope, conditions, time limits, etc.
In accordance with the Article 24 (2) of the Horizon 2020 Rules for Participation (RfP) and the Article 41 (3) of the Grant Agreement for Horizon 2020 (GA), the participants have to conclude a consortium agreement (CA) if the work programme does not rule otherwise.
However, neither the RfP nor the GA stipulates that a CA has to be concluded before the GA is signed. The Annotated Model GA only strongly recommends ("should in principle") that the CA be negotiated and concluded before the action starts because not having a CA at this moment could delay and jeopardise the action.
The situation would change if the work programme exceptionally stipulates that a CA be concluded before the signature of the GA. Such additional participation conditions might be included in accordance with the Article 9(5) of the RfP. In such case, if the European Commission becomes aware of the absence of the conclusion of the CA it would not sign the grant agreement.
According to Article 41.3 of the Model Grant Agreement, a consortium agreement has to be signed between beneficiaries, unless the work programme specifies that there is no need for it. In other words, if not indicated otherwise, the beneficiaries must have internal arrangements regarding their operation and co-ordination to ensure that the action is implemented properly (consortium agreement).
The Grant Agreement is a contract set between the consortium (all its partners) and the European Commission, while the Consortium Agreement is an internal arrangement set between the partners of the consortium - it regulates all issues that are not covered by the Grant Agreement but are important for the internal functioning of the consortium (such as the organisation of work, structure, intellectual property management, liability, conflict resolution, future exploitation and dissemination of results, etc.).
In principle, the agreement may include any arrangements the partners wish to make, as long as they are not contrary to the Grant Agreement and the Horizon 2020 Rules for Participation.
It is to be noted that there is no binding model of a Consortium Agreement. The European Commission has only made available a check list with non-binding guidelines on the issues that participants may consider while drafting their Consortium Agreements.
However, there are several models of Consortium Agreements that have been created by different entities and may be used by participants in H2020 projects. The DESCA model is suitable for all multi-beneficiary projects, the EUCAR model is mainly for automotive R&D projects,the MCARD model for ICT related projects and the LERU and BAK models for MSCA ITN projects.
The above models may help you personalise/complete your consortium agreement. Have, however, in mind that they show only examples of possible approaches and do not show all alternatives for a given situation – you may adjust them for the specific needs of your particular consortium to the extent that such modifications are not in conflict with the Grant Agreement or the Horizon 2020 Rules for Participation.
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);
· 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, as well as arrangements on the settlement of disputes and liability.
Costs related to the protection of the actions results (e.g. consulting fees, fees paid to the patent office for patent registration) and to royalties paid for IPR access rights are normally eligible, if all the eligibility conditions are met, in particular, if such costs incurred during the action;
· are necessary for the implementation of the action;
· are reasonable, justified and complying with the principle of sound financial management, in particular regarding economy and efficiency.
The European Union in Horizon 2020 projects may contribute to a maximum of 100% of the total costs of activities concerning protection, dissemination and management of IPR.
Costs related to protection of other intellectual property (e.g. background patents) are NOT eligible.
It is strongly recommended that if there is doubt about the eligibility, the beneficiaries should contact the Commission/Executive Agency.
The obligation to draft a preliminary plan for the exploitation and dissemination of the results still exists and arises at the proposal stage in Horizon 2020.
Article 13 of the Rules for Participation requires a plan for the exploitation and dissemination of the results, where provided for in the work programme or work plan. The Horizon 2020 Work programme 2014-2015 explicitly specifies the obligation to include a draft plan for the exploitation and dissemination of the results within the project proposal. However the specific call conditions could establish exceptions to this rule. For example a draft plan is not required for proposals at the first stage of two-stage procedures - e.g. the SME instrument.
In Horizon 2020, generally speaking, there is no obligation to carry out freedom to operate searches. However, performing this type of search is usually good practice, as it will enable you to identify infringement risks linked to the exploitation of the project results. Freedom to operate searches are a good way of ensuring that third parties’ rights will not get in the way of exploitation – this information can be crucial at the proposal stage. For instance, finding out that there is only a limited freedom to operate might result in the necessity to contact third parties and ask for a licence – depending on the terms associated with the grant of this licence, you may consider that the project is no longer worthwhile, or will cost substantially more than what was previously envisioned.
However, depending on the funding scheme chosen, specific requirements may apply. For instance, under the Horizon 2020 SME Instrument Phase 2 funding scheme, each beneficiary has the obligation to “ensure its possibility to commercially exploit the results (freedom to operate)”. This obligation is explicitly set forth under article 26.3 (“Rights of third parties”) of the model grant agreement for Phase 2 of the SME Instrument. As you can see, no obligation to carry out a search is explicitly mentioned, but doing so will in our opinion be necessary in many cases for the beneficiary to make sure that it complies with article 26.3.
The Horizon 2020 general model grant agreement does not contain any general rules with regard to the use of open source licensing in Horizon 2020. In general terms, licensing project results is allowed, provided that it does not get in the way of the grant of access rights. This means that the exclusive licensing of project results should be avoided if it prevents access rights from being granted over the same results.
However, specific rules might explicitly forbid the use of open source. For this reason, we would recommend checking the work programme applicable to the relevant call for proposals, in order to see whether this call bears any specific requirements or recommendations which could impact the possibility to use open source. Indeed, while certain types of projects might imply restrictions to the way the results can be used or disseminated (e.g. security-related projects), others can be more focused on dissemination and therefore the appropriateness of open source will of course depend on the type of project. The European Commission has in fact adopted a policy on Open Access to scientific publications, as well as a pilot on Open Access to research data, therefore showing a greater focus on “open” dissemination in Horizon 2020.
If the work programme remains silent on this matter, we would conclude that no particular restriction applies with regard to the adoption of an open source licence over the project results. Furthermore, using open source licensing might provide for better visibility, outreach and re-use of the results and could therefore be beneficial to the overall impact of the project on the scientific community.
Finally, since many open source licences are by nature not restrictive, licensing project results under such terms (i.e. letting the public use, copy, modify, publish, distribute the software) might have for some of the partners the same effect as that of a lack of IPR protection – it could for instance be considered as going against their own commercial interests. For this reason, it would be good practice to discuss the adoption of the open source licence internally amongst the consortium, so that all partners are given an opportunity to raise some concerns in relation to their legitimate interests.
In Horizon 2020, disseminating project results is a general obligation imposed upon project beneficiaries. However, no dissemination can take place until a decision has been made regarding the protection of project results. In other words, dissemination can only occur once the results have been protected, and insofar as it is compatible with this means of protection.
If trade secret protection is the chosen route of protection for one of your project results, dissemination of these results may not take place at all, since it would not be compatible with the protection chosen.
No. In Horizon 2020, Open Access can be defined as the online access to scientific publications, at no charge to the end-user. Open Access therefore only aims at making your work as widely accessible to the public as possible – it does not aim at putting your publications in the public domain, nor to allow the public to reproduce or redistribute a work without its owner’s consent.
In other words, Open Access is only a means of dissemination and does not have any effect upon the copyright in your publications. Provided that your publications are original, they will in any case be protected by copyright.
This does not necessarily mean that you will retain the copyright in your publications: indeed, in Horizon 2020, the rule is that project results (and related intellectual property rights) are owned by the beneficiary generating them. This means that in most cases the organisation or institution you work for will have the ownership of the results, including your publications – this will usually be reflected by a clause in your employment contract. You would in any case retain at least moral rights over your work, such as the right to be identified as its author.
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, in the EU, 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.
Horizon 2020 has a number of new features that make it fit for purpose to promote growth and tackle societal challenges. These include:
- Major simplification through a simpler programme architecture, a single set of rules, an easier-to-use cost reimbursement model, a single point of access for participants, less paperwork in preparing proposals, fewer controls and audits, with the overall aim to reduce the average time to grant;
- An inclusive approach open to new participants, including those with ideas outside of the mainstream, ensuring that excellent researchers and innovators from across Europe and beyond can and do participate;
- The integration of research and innovation by providing seamless and coherent funding from idea to market;
- More support for innovation and activities close to the market, leading to a direct economic stimulus;
- A strong focus on creating business opportunities out of the EU's response to the major concerns common to people in Europe and beyond, i.e. ‘societal challenges’;
- More possibilities for new entrants and young, promising scientists to put forward their ideas and obtain funding.
The intellectual property rules for Horizon 2020 programme have been included in the Rules for Participation, as was the case in the Seventh Framework Programme (FP7)
The rules on intellectual property rights in Horizon 2020 are based on the FP7 rules, with some further improvements and clarifications. There are, however, a few differences, such as:
- Open access to research publications has more emphasis than in FP7 as it is now a general requirement, the specificities of which will, however, be further defined in each grant agreement. In order to help potential participants, the European Commission has published a fact sheet dedicated to open access in Horizon 2020. This fact sheet can be downloaded here
- In parallel, a pilot action in Horizon 2020 has been launched regarding Open Research Data aimed at improving and maximising access and re-use of research data generated by certain specific projects. For more information as to the core areas of Horizon 2020 participating in the Open Research Data Pilot as well as to the types of data which the pilot will be applied to, you can read the European Commission Guidelines on Open Access to Scientific Publications and Research Data in Horizon 2020 available here
- The model grant agreement for Horizon 2020 now makes provision for access rights to project results for the European Union, and in the field of security research also for Member States. Such access rights are limited to certain uses and provided for specific purposes only.
- Some definitions (e.g. definition of background or affiliated entities) have been slightly changed.
The European Commission has created an online manual for Horizon 2020, which will feature an intellectual property guide.
The H2020 online manual is currently being updated and can be accessed from the following URL:
The H2020 Annotated Model Grant Agreement is a guide published by the European Commission with the aim to help users to understand and interpret the Grant Agreement clauses, including those related to intellectual property.
Additionally it provides useful examples and practices. This document is still being completed.
The general rules concerning intellectual property rights can be found in the Rules for Participation, which apply to all funding programmes carried out under Horizon 2020, as well as in the grant agreement signed between the beneficiaries and the European funding body. A company participating in Horizon 2020 and concluding an agreement with a funding organisation or the Commission, for example signing a grant agreement with the Commission, will have to comply with these rules.
The general IPR rules and requirements applying to Horizon 2020 participants are in many ways similar to those applying under FP7:
- In terms of ownership of project results, the general principle is that such results are owned by the beneficiary which generates them.
- In the case where results have been generated by two or several partners jointly, and if it is not possible to establish the joint contribution of each beneficiary or to separate the results for the purposes of applying for, obtaining or maintaining their protection, the model grant agreement establishes a default joint ownership regime.
- Similarly to FP7, the model grant agreement for Horizon 2020 provides for a general obligation for beneficiaries to exploit and disseminate the project results that they own.
- The new model grant agreement also provides the obligation for project partners to grant access rights to their background and foreground, for implementation and exploitation purposes.
Specific additional rules concerning intellectual property rights may also be laid down in the grant agreement and work programme applicable to particular projects, for example in areas related to security, infrastructures, European Research Council (ERC), training and mobility, coordination and support, SMEs and the European Institute of Innovation and Technology (EIT)
In Horizon 2020 no specific requirements to identify background within the project proposals exist.
The Horizon 2020 Rules for Participation and the General model GA oblige the parties “to identify in any manner and agree in writing” upon the background for the project. Although not mandatory, it is advised to agree on background before the Grant Agreement is signed, to ensure that beneficiaries have access rights to what is needed to implement the action or exploit the project results.
According to the needs of the project participants, the agreement on background may be a separate agreement (e.g. if it concerns only certain beneficiaries) or may be part of the Consortium Agreement (e.g. attachment 1 of the DESCA 2020 model CA).
In the context of Horizon 2020 the term beneficiary (i.e. a "participant") is used to describe a legal entity which has signed the Grant Agreement and therefore is bound by its terms and conditions with regards to the European Union (represented by the European Commission or another funding body). The beneficiary must carry out an action or a part of an action funded under Horizon 2020. Furthermore, the term beneficiary also refers to participants that do not receive EU funding but must carry out tasks under an action and comply with most of the obligations under the Grant Agreement. Beneficiaries not receiving EU funding are usually third country participants - that are neither from an EU Member State nor from an associated country.
On the contrary, other legal entities which participate in Horizon 2020 by carrying out some tasks in an action, but which do not sign the Grant Agreement (including entities linked to the beneficiaries) are considered as "third parties involved in an action" (Article 8 of the General Model GA - multi-beneficiary). They are not bound by the terms and conditions of the Grant Agreement and consequently, the European Union (represented by the Commission or another funding body) has no obligation vis-à-vis third parties. If necessary to implement the action, beneficiaries may use contracts and sub-contracting for the purchase of goods, works or services, in-kind contributions provided by third parties and also linked third parties carrying out tasks under an action.
The Horizon 2020 Research and Innovation programme is open to participation for applicants from the following countries:
- The Member States of the European Union and the Overseas Countries and Territories, linked to the Member States
Non-EU Countries. They can be divided into two groups:
Non-EU Countries automatically eligible for funding:
- Countries Associated to Horizon 2020: third countries which are parties to an international agreement with the European Union with regards to this specific framework programme;
- Third countries: which do not belong to the associated countries but are automatically eligible for funding, except where explicitly excluded in the call for proposal text; an exhaustive list of these countries is published on the Horizon 2020 Participant Portal
- Non-EU Countries not automatically eligible for funding - applicants from these countries are eligible for funding in cases where the call for proposal explicitly specifies this option, or funding for these applicants is provided in a bilateral scientific and technological agreement, or when the European Commission estimates that participation of such an entity is essential for carrying out an action under Horizon 2020
- Non-EU Countries automatically eligible for funding:
In principle any legal entity, regardless of its place of establishment, can participate in Horizon 2020. Depending on the procedure for participation, applicants from third countries are divided into two groups:
- Automatically eligible for funding - the associated countries and the countries explicitly listed as being automatically eligible
- Not automatically eligible for funding - though they may still be funded in exceptional cases.
The conditions of particular work programmes may restrict the participation in Horizon 2020, or parts thereof, of legal entities established in third countries where conditions for the participation of legal entities from Member States, or of their affiliated entities established in a third country, in the third country's research and innovation programmes are considered to be prejudicial to the European Union's interests (Article 7.2 of the Horizon 2020 Rules for Participation).
Furthermore, some calls for proposals could require participation of legal entities established in third countries in order to be eligible.
Yes. In fact, wherever their location (EU and countries associated to Horizon 2020, or third countries), beneficiaries which become involved in a Horizon 2020 project will have to sign the grant agreement with the European Commission. Consequently, these beneficiaries will have the rights and obligations set forth in the grant agreement, in particular with regard to background and project results.
Furthermore, neither the Horizon 2020 Rules for Participation nor the model grant agreement make any distinction between project beneficiaries based on the country they are located in.
However, a distinction is sometimes made between beneficiaries which receive EU funding and beneficiaries which do not, regardless of their location. Indeed, a small number of obligations contained in the model grant agreement will not apply to beneficiaries which do not receive EU funding. For more information, please refer to the FAQ on this topic.
Several obligations of the model general grant agreement will not apply to beneficiaries which do not receive EU funding. Regarding intellectual property, this concerns in particular articles 26.4, 28.1, 28.2, 30.3 and 31.5, which will not apply to these beneficiaries.
These articles are specific ones which are mostly linked to the EU’s rights over the results – however, the general principles in terms of intellectual property will remain applicable to beneficiaries which do not receive EU funding.
Consequently, the following basic IP rules (as included in the model grant agreement) will apply without any distinction to all project partners, regardless of their benefiting from EU funding or not.
- Article 25, which foresees access rights to background for implementation and/or exploitation purposes;
- Article 26.1, according to which the results will be the property of the beneficiary which generates them;
- Article 26.2, which foresees a default regime applicable to situations of joint ownership;
- Article 29, which foresees the dissemination of results and open access to scientific publications and research data;
- Article 31, according to which beneficiaries have to grant access rights to their results to other beneficiaries when they need such access rights to implement the project and/or to exploit their own results.
In MSCA, the general rule surrounding ownership is that project results are owned by the beneficiary generating them.
In other words, your institution (e.g. your university) will sign the Grant Agreement with the European Commission and will consequently be considered as a beneficiary, i.e. the owner of the project results which its staff generates during the action. The default rule is therefore that copyright over your publications will be vested in your institution. As a researcher, you do not benefit from any automatic ownership rights under the Grant Agreement.
This provision will have to be reflected in the contractual relationship between you and your institution. This means that your institution will most likely include a clause in your contract stating that all project results you develop as part of your Marie Skłodowska-Curie grant will belong to it. As a result, you would own neither your project results (publications) nor the intellectual property rights over them (copyright).
However, you would in any case retain your moral rights over the works you have authored – that is, rights which are vested in a work’s author and cannot be transferred. These include for instance the right to be identified as the work’s author, or the right to object to any derogatory treatment of your work.
In MSCA, the rules surrounding the ownership of project results are the same as those applicable in other Horizon 2020 actions: project results are owned by the beneficiary generating them.
This means that even the results generated by your fellow while on secondment would belong to your institution, in accordance with the default rules applicable in the Grant Agreement. In other words, your partner organisation will not automatically be entitled to any IPR over the results developed on secondment, since it is not a beneficiary in the project, but a mere third party which does not employ the researcher within the action but only provides additional training and hosts him during the secondment.
However, this default rule is not always compatible with a third party institution’s internal policy. It is indeed not uncommon for partner organisations to require that the ownership of the results developed on secondment be granted to them, because this is what their IP policy requires. For this reason, and to avoid any dead-end, your institution should adopt a flexible approach. Since your partner organisation might not be aware of your own obligations under the Grant Agreement, you should clarify this point beforehand and outline your rights and obligations in terms of ownership, access rights, protection, exploitation and dissemination. This will allow your partner to understand the framework in which you can negotiate, and the rules and limitations which you have to comply with on your side. Then, remember that the Grant Agreement allows you to license or to transfer project results to third parties, under certain conditions. This means that, providing that these conditions are met, you can agree to license or transfer to your partner institution the project results developed by your fellow while on secondment. The terms of such agreement will vary depending on both parties’ interests, but this will allow you to settle on a different ownership regime which will be beneficial to you and your partner alike.
Pursuant to the Grant Agreement, beneficiaries have to make sure that researchers enjoy, on a royalty-free basis, access rights to the background and results so that they are able to develop their work under the project. Such access rights are to be granted only if they are necessary for researchers to be 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.
The ‘consortium agreement’ is an agreement between members of the consortium, to set out their internal arrangements for implementing the grant. It is purely internal. Partner organisations are not signatories to the grant agreement and have neither rights nor obligations under it. They do not form part of the consortium, and hence, the do not sign consortium agreement.
Partner organisations will, of course, have an interest in some/all project results (e.g. those developed by researchers while on secondment at their premises). Those issues will be however dealt with in a separate arrangement - partnership agreement. Partners do not have a general interest in all results, nor should they be involved in consortium decisions regarding exploitation or dissemination strategies: they are, after all, only third parties to the project.
In terms of protection, indeed, Horizon 2020 poses a general obligation to protect the project results - please see article 42 of the Horizon 2020 Rules for Participation and article 27 of the Model Grant Agreement.
This obligation does not apply to all results - it will only apply insofar as the results that are capable of (or can be reasonably expected to be capable of) commercial or industrial application and their protection is ‘possible, reasonable and justified’. Therefore, in many cases there will be no obligation to protect and the dissemination activities will suffice. Hence, no protection is necessary if protection is impossible under Union or national law or not justified.
Moreover, Horizon 2020 rules leave it up to the project participants to set up their own protection strategies. The choice of the most suitable form of protection should be made on the basis of the specificities of the action and the type of result - for instance, you may resort to confidentiality measures instead of filing for a specific intellectual property title (patent, utility model, industrial design etc).
Project related publications and presentations may also constitute project results. If original, these works will be protected by copyright. Copyright arises automatically upon the creation of the work: you will not need to register it or pay any fees. This means that once an original work is created, the copyright holder can prevent others from, for instance, copying or distributing these works without its consent. Please note that copyright will not protect the information or ideas contained in your publication but only the way in which they are expressed.
The signing of a consortium agreement is compulsory under a few Marie Skłodowska-Curie calls only – when it is not, the Work Programme always explicitly states so. For instance, there are no consortium agreements in mono-beneficiary projects.
A first step would therefore be to check whether a consortium agreement is compulsory in your case, depending on the type of project that you will take part in.
If a consortium agreement is not compulsory, it is usually good practice to conclude one anyway if you are part of a multi-beneficiary MSCA. In particular, a consortium agreement will usually be useful in case of a multiplicity of partners from different backgrounds (industry, academia) and will help you to clarify management and intellectual property issues.
In terms of intellectual property, please note that the rules in MSCA bear many similarities to the rules applicable in “standard” Horizon 2020 research and innovation actions (which most models are based on).
So far, two model Consortium Agreement templates have been published for MSCA-ITN projects, on the basis of the DESCA model: the LERU model and the BAK model. You can find them in the "Useful Documents" section of our online library.
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/
In Horizon 2020, the main rules applicable to the ownership of project results can be found in the model grant agreement. According to these rules, project results are owned by the beneficiary which generates them. Your organisation would therefore own the results which it has generated.
However, if two or more beneficiaries jointly generate results and it is not possible to establish the respective contribution of each beneficiary, or to separate the results for the purpose of applying for, obtaining or maintaining their protection, then the results will be held by these beneficiaries under a regime of joint ownership. In this case, the joint owners must agree in writing on the allocation and terms of exercise of their joint ownership, by way of a joint ownership agreement.
If joint owners have not yet concluded a joint ownership agreement, the default joint ownership regime set forth in the grant agreement will apply. According to this default regime, each joint owner may grant non-exclusive licences to third parties to exploit the jointly owned results, without any right to sub-license, as long as the joint owners are given at least 45 days advance notice and a fair and reasonable compensation.
Please note that joint ownership is not compulsory. Indeed, once joint results have been generated, the joint owners can agree in writing to apply another regime than joint ownership, such as for instance the transfer to a single owner and the grant of access rights (e.g. licences) to the others.
As a general rule under the Grant Agreement (Article 30.1 of the Model Grant Agreement), each beneficiary may transfer the ownership of its own results. When doing so, the transferor has in principle the obligation to give at least a 45-day prior notice to the other beneficiaries which still have, or may still request, access rights to these results. The advance notice must contain sufficient information in order for these beneficiaries to identify the transferee and assess whether their access rights might be affected by the transfer. Upon notification, any of these beneficiaries with access rights may object to the transfer, if it can show that its access rights would be adversely affected. In this case, no transfer may take place until the beneficiaries concerned reach an agreement.
This notification and objection procedure can however be overlooked in certain specific situations, amongst which:
- Mergers and acquisitions: if a transfer of ownership is not explicit but the result of a take-over or merger between two companies, confidentiality constraints under mergers and acquisitions rules will normally prevail. This means that the transfer will have to be kept confidential until the take-over or merger happens, and will be notified to the relevant beneficiaries only afterwards.
- Transfers to specifically identified third parties: by prior written agreement, the beneficiaries may waive their right to object to transfers of ownership to a specifically identified third party. In this case, there is no need to notify the other beneficiaries of the intended transfer, since they have already agreed not to object to it. This mechanism is very useful if one of the beneficiaries is part of a large group and already plans to transfer its results to its mother company or to one of its subsidiaries: it allows this beneficiary to do so without having to notify each transfer every time.
In Horizon 2020, the general principle is that each partner has the right to transfer its own project results to a third party, such as its mother company.
However, if the transferee is located in a third country, i.e. a non-EU country non-associated with Horizon 2020 (such as the US), transfers will be possible in theory, but may be made subject to certain conditions. This will depend on whether your own Grant Agreement contains an optional clause to this effect (article 30.3 of the Model Grant Agreement).
If this optional clause is included in your Grant Agreement, the transfer of project results to a third party located in the US – or in any other non-associated country – will be subject to a prior, formal notification to the European Commission. Following this notification, the Commission will have the right to object to the transfer, if it considers that it is not in line with EU competitiveness interests, not consistent with ethical principles, or not consistent with security considerations. If the Commission objects, no transfer can take place; if it allows the transfer provided that certain conditions are met, no transfer can take place until these conditions are fulfilled.
If the optional article 30.3 is not included in your GA, transfers to third parties will be allowed, regardless of their location.
In any case, if a transfer is possible or allowed, please note that the transferee (US company) will still have to comply with certain obligations, such as the obligations to exploit, disseminate, and grant access rights to the project results (please see article 30.1 of the Model Grant Agreement).
In Horizon 2020, third parties do not sign the grant agreement and consequently are not project beneficiaries – for this reason, they do not have any “automatic” rights to the results under the grant agreement, according to which results are owned by the beneficiary generating them.
Furthermore, when resorting to third parties to carry out tasks under the action, and in case these third parties are entitled to claim rights over the results, the beneficiary concerned should make sure that it complies with its own obligations under the grant agreement. This means getting all the necessary rights from these third parties beforehand. This can be done by way of a transfer (assignment agreement) from the subcontractor to the beneficiary. Alternatively, this can also be done by way of a licence granted to this beneficiary over the subcontracted work. A licence should, however, be broad enough to allow the beneficiary to grant access rights – this means that it should include a right to sublicense. Such arrangements (transfer or licence) have to be made upon the signature of the subcontracting agreement.
The grant agreement therefore allows some flexibility on this topic and the ownership of certain project results can be left to the subcontractor, as long as the beneficiary is granted all the rights necessary for the implementation of the project and the exploitation of the results, in line with the grant agreement.
The owners of the results generated under an H2020 project can decide not to protect their results and transfer their ownership. The beneficiaries must, however, ensure that their obligations regarding such results apply to the new owner (e.g. protection, dissemination, exploitation, access rights).
Unless agreed otherwise, prior notice about the intention to transfer the results must be given to the other project beneficiaries together with sufficient information concerning the future owner.
Any other beneficiary may object to the transfer if it can show that it would adversely affect its access rights. In this case, the transfer may not take place, until the beneficiaries concerned reach an agreement.
Each beneficiary under a H2020 project has an obligation to examine the possibility of protecting its results and protect them adequately if such results can reasonably be expected to be commercially or industrially exploited. The form of protection, its duration and geographical coverage should depend on and be adequate for the particular results. Nonetheless, the reference to industrial or commercial applicability means that not all results have to be protected. For instance, for results that are not expected to be commercially or industrially exploited or whose protection is impossible under European Union or national law or not justified, there is no such obligation.
Furthermore, when deciding whether to protect results or not, the beneficiaries must also consider the other beneficiaries’ legitimate interests and conform to all the relevant legal provisions, including the provisions set out in the Consortium Agreement. Where a participant does not intend to protect a result, it is also best practice to consider offering to transfer it to other consortium partners or third parties established in a Member State or associated country, better positioned for the exploitation of the results and willing to seek their protection.
It is also to be noticed that if valuable results are left unprotected, the Commission may take over their ownership.