Ownership of knowledge
1. Knowledge arising from work carried out under direct actions shall be the property of the Community.
2. Knowledge arising from work carried out under indirect actions provided for in Article 9(2)(b) and (d) shall be the property of the Community. Knowledge arising from work carried out under other indirect actions shall be the property of the participants carrying out the work leading to that knowledge.
3. Where several participants have jointly carried out work generating the knowledge referred to in paragraph 2 and where their respective share of the work cannot be ascertained, they shall have joint ownership of such knowledge. They shall agree among themselves on the allocation and the terms of exercising the ownership of the knowledge in accordance with the provisions of this Regulation and of the contract.
4. Knowledge arising from work carried out under cooperative or collective research projects shall be the joint property of the SMEs or the enterprise groupings, which shall agree on the allocation and the terms of exercising the ownership of the knowledge in particular in the consortium agreement in accordance with the provisions of this Regulation and of the contract.
5. If personnel employed by a participant are entitled to claim rights to knowledge, the participant shall take steps or reach appropriate agreements to ensure that these rights can be exercised in a manner compatible with its obligations under this Regulation and the contract.
6. Where a participant transfers ownership of knowledge, it shall take steps or conclude agreements to pass on its obligations, in particular concerning the granting of access rights, the dissemination and use of the knowledge, under this Regulation and the contract, to the assignee. As long as the participant is required to grant access rights, it shall give prior notice to the Commission and the other participants in the same indirect action of the envisaged assignment and the assignee.
The Commission or other participants in the indirect action may object within 30 days of notification to such a transfer of ownership. The Commission may object to any transfer of ownership to third parties, in particular to those not established in a Member State or an associated State, if such a transfer is not in accordance with the interests of developing the competitiveness of the dynamic, knowledge-based European economy, or is inconsistent with ethical principles. The other participants may object to any transfer of ownership if this would adversely affect their access rights.
Protection of knowledge
1. Where knowledge is capable of industrial or commercial application, its owner shall provide for its adequate and effective protection in conformity with relevant legal provisions, the contract and the consortium agreement, and having due regard to the legitimate interests of the participants concerned.
2. Where the Commission considers it necessary to protect knowledge in a particular country, and where such protection has not been applied for or has been waived, the Commission may, with the agreement of the participant concerned, adopt protective measures. In this event, and as far as that particular country is concerned, the Community shall take on the obligations regarding the granting of access rights in the place of the participant. The participant may only refuse if it can demonstrate that its legitimate interests will be significantly impaired.
3. A participant may publish or allow the publication, on whatever medium, of data concerning knowledge it owns or knowledge obtained during work in connection with cooperative or collective research projects, provided that this does not affect the protection of that knowledge. The Commission and the other participants in the same indirect action shall be given prior written notice of any planned publication. A copy of such data shall on request be made available to them within 30 days of the request. The Commission and the other participants may object to the publication within a period of 30 days from receipt of the data, if they consider that the protection of their knowledge could thereby be adversely affected.
Use and dissemination of knowledge
1. The participants and the Community shall use or cause to be used the knowledge which they own arising from the direct actions or indirect actions, in accordance with the interests of the participants concerned. The participants shall set out the terms of use in a detailed and verifiable manner, in accordance with this Regulation and the contract.
2. If dissemination of the knowledge does not adversely affect its protection or use, the participants shall ensure that it is disseminated within a period laid down by the Community. Should the participants fail to do so, the Commission may disseminate the knowledge. Particular account shall be taken of the following factors:
(a) the need to safeguard intellectual property rights;
(b) the benefits of swift dissemination, for example in order to avoid duplication of research efforts and to create synergies between indirect actions;
(c) confidentiality;
(d) the legitimate interests of the participants.
Making available knowledge arising from direct actions
Knowledge arising from work carried out under direct actions may be made available to one or more interested legal entities, in particular to those established in a Member State or an Associated State, provided that the said legal entities undertake to use the knowledge or to ensure that it is used. Such availability of knowledge shall be subject to appropriate conditions to be laid down and published by the Commission, in particular concerning the payment of fees.
Principles for access rights in indirect actions
1. Access rights in accordance with Articles 26 and 27 shall be granted on written request. The granting of access rights may be made conditional on the conclusion of specific agreements, aimed at ensuring that they are used only for the intended purpose, and the giving of appropriate undertakings as to confidentiality. Participants may also conclude agreements with the purpose, in particular, of granting additional or more favourable access rights, including access rights to third parties, in particular to enterprises associated with participants, or specifying the requirements applicable to access rights, but not restricting the latter. Such agreements shall comply with the applicable competition rules.
The Commission may object to any grant of access rights to third parties, in particular to those not established in a Member State or an Associated State, if such a grant is not in accordance with the interests of developing the competitiveness of the dynamic, knowledge-based European economy, or is inconsistent with ethical principles.
2. Access rights to pre-existing know-how shall be granted provided that the participant concerned is free to grant them.
3. A participant may explicitly exclude specific pre-existing know-how from the obligation to grant access rights by means of a written agreement between the participants, before the participant concerned signs the contract or before a new participant joins the indirect action. The other participants may only withhold their agreement if they demonstrate that implementation of the indirect action or their legitimate interests will be significantly impaired thereby.
4. Except where the participant granting access rights so agrees, such rights shall confer no entitlement to grant sub-licences.
Access rights for the execution of indirect actions
1. Participants in the same indirect action shall enjoy access rights to the knowledge arising from work carried out under the indirect action and to the pre-existing know-how, if that knowledge or pre-existing know-how is needed to carry out their own work under that indirect action. Access rights to knowledge shall be granted on a royalty-free basis. Access rights to pre-existing know-how shall also be granted on a royalty-free basis, unless otherwise agreed, before signature of the contract.
2. Subject to its legitimate interests, the termination of the participation of a participant shall in no way affect the obligation to grant access rights pursuant to paragraph 1 to the other participants in the same indirect action until its end.
Access rights for use
1. Participants in the same indirect action shall enjoy access rights to the knowledge arising from work carried out under the indirect action and to the pre-existing know-how, if that knowledge or pre-existing know-how is needed to use their own knowledge. Access rights to knowledge shall be granted on a royalty-free basis, unless otherwise agreed, before signature of the contract. Access rights to pre-existing know-how shall be granted under fair and non-discriminatory conditions.
2. Subject to the participants' legitimate interests, access rights may be requested under the conditions laid down in paragraph 1 until two years after the end of the indirect action or after the termination of the participation of a participant, whichever falls earlier, unless there is provision for a longer period.
Incompatible or restrictive commitments
1. Participants shall make no commitments incompatible with the obligations provided for in this Regulation.
2. Participants in the same indirect action shall be informed as soon as possible by the participant required to grant access rights of any limitations to the granting of access rights to pre-existing know-how, of any obligations to grant rights to knowledge, or of any restriction which might substantially affect the granting of access rights, as the case may be.
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 December 2002.
For the European Parliament
The President
P. Cox
For the Council
The President
M. Fischer Boel
(1) OJ C 332 E, 27.11.2001, p. 275, OJ C 103 E, 30.4.2002, p. 266 and OJ C 262 E, 29.10.2002, p. 489.
(2) OJ C 94, 18.4.2002, p. 1.
(3) Opinion of the European Parliament of 3 July 2002 (not yet published in the Official Journal), and Council Decision of 5 November 2002.
(4) OJ L 232, 29.8.2002, p. 1.
(5) OJ L 199, 31.7.1985, p. 1.
(6) OJ L 107, 30.4.1996, p. 4.
(7) OJ L 312, 23.12.1995, p. 1.
(8) OJ C 45, 17.2.1996, p. 5.
(9) Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).
(10) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999, p. 1).
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
