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.