COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(92) 202 final 
Brussels, 11 May 1992 
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 
Proposal for a Joint Declaration of the Council and the Commission in respect 
of negotiations concerning the IPR aspects of agreements for scientific and 
technological cooperation between the European Community and third 
countries 
2 
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 
SUBJECT: Proposal for a Joint Declaration of the Council and the Commission in respect 
of negotiations concerning the IPR aspects of agreements for scientific and 
technological cooperation between the European Community and third 
countries. 
An increasingly important and difficult aspect of cooperation agreements in the field 
of science and technology is the allocation and management of intellectual property 
rights. This aspect is important because the object of such co-operation increasingly 
involves industrial and commercial aspects; consequently exploitation of results is a 
more immediate objective than was formerly the case. It is difficult because of the 
increasing realisation by industrialists and governments that intellectual property is a 
crucial, and perhaps, the most crucial component in modern international trade. 
The elements outlined above have grown in significance relatively recently. Formerly, 
intellectual property rights occupied a less controversial role in such agreements, and 
could be treated on an "ad hoc" basis without fear that conditions governing their 
exploitation could result in distortions of trade or competition. This led to a more 
relaxed but ultimately fragmented and contradictory approach from different 
institutions within the Community. The new attitudes governing the exploitation of 
intellectual property rights worldwide have changed the situation, and demand a more 
careful and coherent approach. 
The Commission has in the first place approached the problem pragmatically from the 
point of view of the Commission's own needs notably in the context of the 
EURATOM treaty and has concluded, in the light of these changing circumstances, 
that a standard framework is needed within which intellectual property rights created 
under the Communities' own cooperation agreements can be managed. Such a 
framework needs to incorporate two elements: in the first place it needs to ensure that 
participants are rewarded for their efforts and will make maximum use of results for 
the benefit of the world as a whole; at the same time it needs to provide the certainty 
that the Community's important interests will be protected however the results of 
cooperation should be allocated. 
Working to the above criteria, the Commission has in consequence prepared the 
attached text which it is proposed will in future be used as a basis for negotiating the 
IPR aspects of all cooperation agreements in the field of science and technology 
between the Community and third countries or institutions thereof. 
At the same time, the Commission has concluded that a coordinated and coherent 
approach in this area would be of considerable benefit to the Community, notably in 
strengthening the negotiating power of individual Member States in their dealings 
with third countries, and thus reinforcing the Community's objective under Article 
130f EC. The Commission proposes for this purpose the text attached, which whilst 
providing general principles of general application in the Community's interest, is 
nevertheless sufficiently flexible to encompass a wide variety of needs and objectives. 
It is compatible with the general rules and procedures of contracting in this area, 
including, inter alia the harmonised contract for the Framework Programme and the 
Council Decision on the Valorisation of Results (VALUE 2) 
Both the United States and Japan are reviewing the standard terms on which they 
propose to deal with intellectual property rights in such agreements; several of the 
2 
Member States have already been offered terms by the United States that could be 
prejudicial to the Community's interests. The Commission proposes that the attached 
text would help to provide a united Community response to that approach. The text 
is, however, of potentially wider application, as it is intended to form the basis of the 
Community's negotiating position on the intellectual property aspects of agreements 
for scientific and technological cooperation with third countries. 
It is therefore proposed that the Council and the Commission 
adopt the Declaration attached declaring that they will follow the general 
guiding principles set out in the attached text when negotiating with third 
countries the intellectual property aspects of agreements for scientific and 
technological cooperation. 
V 
DECLARATION OF THE COUNCIL AND THE COMMISSION IN RESPECT OF THE 
INTELLECTUAL PROPERTY ASPECTS OF SCIENTIFIC AND TECHNOLOGICAL 
COOPERATION AGREEMENTS WITH THIRD COUNTRIES 
The Council and the Commission declare it to be desirable that the Community adopt 
a coherent approach in respect of the intellectual property aspects of scientific and 
technological cooperation agreements with third countries with a view to ensuring fair, 
adequate and effective protection of all intellectual property rights resulting from or 
employed in joint research. 
Consequently they agree that the general guiding principles on this matter set out in 
the text annexed will be followed when negotiating such agreements. 
NEGOTIATING APPROACH FOR THE COMMISSION IN RESPECT OF THE IP ASPECTS OF S&T 
COOPERATION AGREEMENTS WITH THIRD COUNTRIES 
The aim of this document is to ensure fair, adequate and effective protection of all 
intellectual property (IP) resulting from joint research on the basis of S&T cooperation 
agreements in accordance with the mutual interests of the Parties. 
The part of the text of such agreements that deals with IP aspects may not'always reflect 
the text of the guidelines set out in this document in its entirety because international 
agreements in general constitute the result of negotiations between parties with different 
priorities, approaches and objectives and are therefore often a compromise between 
originally differing positions. 
• * * • • 
IP ANNEXE 
The Parties agree on the allocation of rights to IP resulting from joint research under this 
Agreement according to the Procedures laid out in this text and subject to the General 
Rules below. 
I. GENERAL RULES ON OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS 
1. All research carried out pursuant to this Agreement shall be "joint research". The Parties 
or their designees shall jointly develop joint technology management plans in respect of 
information and IP to be created in the course of joint research. Those plans shall be 
approved by the Parties before the conclusion of any specific R&D cooperation contracts 
to which they refer. In other cases they shall be approved in parallel with this Agreement1. 
The technology management plans shall be developed bearing in mind the relative 
contributions of the Parties, the advantages and disadvantages of licensing by territory or 
for field of use, requirements imposed by applicable laws and other factors deemed 
appropriate by the Parties. The rights and obligations of visiting researchers shall also be 
addressed in the joint technology management plans. 
2. Information or IP created in the course of joint research and not addressed in the 
technology management plan shall be allocated, with the approval of the Parties, according 
to the principles set out in the technology management plan. In case of disagreement such 
information or IP shall be owned jointly by the Parties or by all the Participants involved in 
the joint team from which the information or IP results as appropriate. Notwithstanding 
the rights of other Participants, each Participant to whom this provision applies shall have 
the right to use such information or IP including for commercial exploitation with no 
geographical limitation. 
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3. Each Party shall ensure within the limits of its applicable laws that the other Party and its 
Participants can obtain the rights to IP allocated to them in accordance with this Annexe. 
4. Each Party shall use its best endeavours to ensure that rights acquired pursuant to this 
Agreement are exercised in such a way as to encourage : 
i. the dissemination and use of non-confidential information created, provided or 
exchanged under this Agreement; 
ii. the adoption and implementation of international standards; 
iii. competition in areas affected by the Agreement; 
II. PROCEDURES FOR SCIENTIFIC LITERARY WORKS 
1. In the case of publication by a Party or public bodies of that Party of scientific and 
technical journals, articles, reports and books arising from joint research pursuant to 
this Agreement, the other Party shall be entitled to a non-exclusive, irrevocable, 
royalty-free licence in all countries to translate, reproduce, adapt and publicly 
distribute such works. 
2. The Parties shall ensure that literary works of a scientific character arising from joint 
research pursuant to this Agreement and published by independent publishers can be 
disseminated as widely as possible. 
3. All publicly distributed copies of a copyright work prepared under this provision shall 
indicate the names of the author(s) of the work unless an author or authors expressly 
declines or decline to be named. They shall also bear a clearly visible 
acknowledgement of the cooperative support of the Parties 
III. PROCEDURES FOR OTHER COPYRIGHT WORKS 
Copyright belonging to the Parties or to their Participants shall be accorded treatment 
consistent with the Berne Convention (Paris Act 1971) 
IV. PROCEDURES FOR DOCUMENTARY UNDISCLOSED INFORMATION 
1. Each Party or its designees as appropriate shall identify at the earliest possible moment 
and preferably in the technology management plan the information that it wishes to remain 
undisclosed in relation to this Agreement. In this identification the following criteria shall 
in particular be taken into account: 
secrecy of the information in the sense that the information is not, as a body or in the 
precise configuration of its components, generally known among or readily accessible 
by lawful means to experts in the field 
the actual or potential commercial value of the information by virtue of its secrecy; 
previous protection of the information in the sense that it has been subject to steps 
that were reasonable under the circumstances by the person lawfully in control, to 
maintain its secrecy; 
2. A party receiving undisclosed information pursuant to this Agreement shall respect the 
privileged nature thereof, provided such undisclosed information is clearly marked with the 
following (or substantially similar) restrictive legend: 
"This document contains undisclosed information furnished in confidence under the 
Agreement dated ... between and the European Community and shall not be 
disseminated beyond the designated Participants of the Parties and their permitted 
licensees, and the concerned departments and agencies of and the European the 
"3" . ; 
Community without prior approval of the transmitting Party. This notice shall be marked 
on any reproduction of the said information, in whole or in part. These limitations shall 
automatically terminate when this information is disclosed by the owner without restriction 
to experts in the field 
3. Undisclosed information received under this Agreement may be disseminated by the 
receiving Party to persons within or employed by the receiving Party, and other concerned 
departments or agencies in the receiving Party needing to know it for the specific purposes 
of the joint research underway, provided that any undisclosed information so disseminated 
shall be pursuant to an agreement of confidentiality and shall be marked with a restrictive 
legend similar to that appearing in paragraph IV.2 above. 
4. With the prior written consent of the Party providing undisclosed information under this 
Agreement, the receiving Party may disseminate such undisclosed information more widely 
than otherwise permitted in the foregoing paragraph (IV.3). The Parties shall cooperate in 
developing procedures for requesting and obtaining prior written consent for such wider 
dissemination, and each Party will grant such approval to the extent permitted by its 
domestic policies, regulations and laws. 
5. Each Party shall exercise its best efforts to ensure that undisclosed information received by 
it under this Agreement shall be controlled as provided herein. If one of the Parties 
becomes aware that it will be, or may reasonably be expected to become, unable to meet 
the non-dissemination provisions of this Article, it shall immediately inform the other 
Party. The Parties shall thereafter consult to define an appropriate course of action. 
Non-documentary undisclosed or other confidential or privileged information provided in 
seminars and other meetings arranged under this Agreement, or information arising from 
the attachment of staff, use of facilities, or joint projects, shall be treated by the Parties or 
their Participants according to the principles specified for documentary information in this 
Agreement provided, however, that the recipient of such undisclosed or other confidential 
or privileged information is aware of the confidential character of the information 
communicated at the time such communication is made. 
* * * 
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APPENDIX 
DEFINITIONS 
1. INTELLECTUAL PROPERTY: Shall have the meaning found in Article 2 of the Convention 
establishing the World Intellectual Property Organization, done at Stockholm, July 14 1967. 
2. PARTICIPANT: Any individual or legal entity participating in a project. 
3. JOINT RESEARCH: Cooperative research funded wholly or partly by the joint contributions 
of the Parties and with collaboration from Participants of both Parties where appropriate. 
4. INFORMATION: Scientific or technical data, results or methods of research and development 
stemming from the JOINT RESEARCH and any other information deemed necessary by 
the Parties and /or Participants engaged in the JOINT RESEARCH to be provided or 
exchanged under this Agreement or co-operative research pursuant thereto. 
ISSN 0254-1475 
COM(92) 202 final 
DOCUMENTS 
EN 08 
Catalogue number: CB-CO-92-216-EN-C 
ISBN 92-77-44249-2 
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