Source: EURLEX
Language: en
Format: md

**COMMISSION OF THE EUROPEAN** **CCSVIVnJNITIES**

C0M(93) 269 f i n a l                         - SYN 461

Brussels, 10 June 1993

Proposal for a

**COUNCIL DECISION**

concerning the conclusion of an Agreement relating to scientific _and_ technical
S o ^ o n between the European Economic Community and Austraha

```
                (presented by the Commission)

```

**EXPLANATORY MEMORANDUM**

1. Scientific and technological contacts between the European Communities and
Australia have been based so far on an arrangement signed in November 1986
between the Commission and the Australian Government. This arrangement aims
at initiating cooperation through the exchange of non-confidential information arising
from research in Austraha and the European Community in a number of areas.
Both sides considered it as a starting point to explore more structured and concrete
cooperation.

2. During the Ministerial Consultations of May 1988 the two sides came to the
conclusion that more concrete scientific and technical cooperation would require the
conclusion of an agreement between the European Economic Community and the
Government of Australia.

3. On June 1989 the Commission transmitted to Council a Recommendation for a
Decision authorizing it to negotiate a framework agreement for S&T cooperation
with Australia (SEC(89)783 of 24 May 1989). This initiative was jointly taken by
Vice-Presidents Pandolfi and Andriessen. At the request of several Members States
further discussion was postponed while waiting for a Commission document on
cooperation in science and technology with third countries. That document was
transmitted to Council on 25 June 1990 (COM(90)256). Council drew its conclusions
during its meeting of 20 November 1990.

4. In the light of these conclusions and as a result of further contacts with Australia's
scientific community and simultaneous progress on establishing guiding principles on
the allocation of intellectual property rights within S&T cooperation agreements with
third countries, the Commission submitted on 13 January 1992 a Recommendation
for a Council Decision authorizing it to negotiate an agreement for scientific and
technical cooperation with Australia. Council took its Decision on 21 May 1992.

##### **3**

**5. On this basis negotiations took place** **with** **the Australian Government** **which** **resulted**
**in the attached draft agreement, including its annex on the dissemination and**
**utilization of information and management, allocation and exercise of intellectual**
**property rights.**

**It is the first time that a cooperation agreement of this kind has been negotiated**
**between the European Community and an industrialized third country outside**
**Europe. It is also the first time that the afore-mentioned annex relating to the**
**dissemination and utilization of information and intellectual property rights was put**
**to a test in negotiations concerning a scientific and technical cooperation agreement**
**with a third country. This follows the adoption on 26 June 1992 of a "Joint**
**declaration of the Council** **and** **the Commission** **in** **respect of the Intellectual Property**
**aspects of scientific and technological cooperation agreements between the**
**Community and third countries".**

**6. The draft** **Agreement,** **which is annexed to the attached proposal for a Council**
**decision, provides for:**

**- the participation of persons and legal entities, research institutes, and other**
**bodies, including the Parties themselves, in research projects conducted by**
**Australia or the Community in a restricted number of research areas;**

**- the shared use of research facilities in pursuit of cooperation on research projects;**

**- visits and exchanges of scientists, engineers and other appropriate personnel;**

**- the exchange of information;**

**- other activities as may be jointly determined by a Joint Cooperation Committee**
**in accordance with the applicable policies and programmes of the Parties;**

**- the endorsement by the Parties of Technology Management Plans as a condition**
**for research projects to proceed, as described in the Annex to the draft**
**Agreement;**

**- cooperative activities to be subject to the availability of funds and to the**
**applicable laws and regulations, policies and programmes of Australia and the**
**Community; no transfer of funds will take place.**

## **_1_**

**7. As far as the results of the negotiations are concerned in comparison with the**
**negotiating instructions, it should be stressed that the provisions with regard to the**
**scope of the** **agreement,** **the forms of cooperation, the dissemination and utilization**
**of information, and the** **financing** **provisions, have been respected. As regards the**
**management of** **the** **draft Agreement it is foreseen that participation in each other's**
**research projects will take place in accordance with the procedures in force for each**
**Party [Article 4.1.(a)], which implies on the Community's side the full part to be**
**played by the committees of the specific programmes in the selection of projects**
**which will be the subject of cooperation. It should also be underlined that the**
**Commission has been able to have the Community's guiding principles on the**
**dissemination and utilization of information and management, allocation and exercise**
**of intellectual property rights almost completely accepted by the Australian side.**
**The annex to the draft agreement which deals with these guiding principles**
**constitutes an integral part of the draft Agreement.**

**8.** **In the** **light of the above-mentioned considerations the Commission proposes** **that** **the**
**Council adopt the attached proposal for a Decision.**

### **_s_**

**Proposal for a**

**COUNCIL** **DECISION**

**concerning the conclusion of an Agreement relating to scientific and technical**
**cooperation between the European Economic Community and Australia**

**THE COUNCIL OF THE EUROPEAN COMMUNITIES,**

**Having regard to the Treaty establishing the European Economic Community, and in**
**particular Article 130Q(2)** **thereof,**

**Having regard to the proposal of the Commission** _**\**_

**in cooperation with the European** **Parliament** **[2]** **,**

**Having regard to the opinion of the Economic and Social Committee** **[ 3]** **,**

**WHEREAS the European Economic Community and Australia are pursuing specific**
**research programmes in areas of common interest,**

**WHEREAS on the basis of past experience in the framework of the Arrangement**
**between the Government of Austraha and the Commission of the European**
**Communities for cooperation in Science and Technology, signed on 12 November 1986,**
**both sides have expressed a desire to establish a more formal** **framework** **for the conduct**
**of collaboration in science and technology,**

**WHEREAS by Decision 92/** **/EEC** **[ 4]** **of 21 May 1992 Council authorized the**
**Commission to negotiate an agreement for scientific and technical cooperation between**
**the European Economic Community and Australia,**

**WHEREAS the Community and Australia expect to obtain mutual benefit from**
**cooperation,**

**WHEREAS** **the** **Agreement** **on** **scientific** **and** **technical cooperation between the** **EEC and**
**Australia should be approved,**

**DECIDES:**

**1** **O.J.** **N°**

**2** **O.J.** **N°** **C**

**3** **OJ.** **N°C**

**4** **OJ. N°**

**Article** 1

The Agreement relating to Scientific and Technical Cooperation between the European
Economic Community and Australia, is hereby approved on behalf of the Community.
The text of the Agreement is attached to this Decision.

**Artidc2**

The President of the Council shall carry out the notifications provided for in Article 11
**of the Agreement**

**Ike**

**DRAFT**

**AGREEMENT RELATING TO SCIENTIFIC AND TECHNICAL**

**COOPERATION** **BETWEEN AUSTRALIA** **AND** **TOE**

**EUROPEAN ECONOMIC COMMUNITY**

AUSTRALIA and THE EUROPEAN ECONOMIC COMMUNITY, hereinafter referred

to as the "Parties",

RECOGNISING that the European Economic Community, hereinafter called "the
Community", and Australia are pursuing specific research programmes in areas of
common interest;

NOTING the Arrangement between the Government of Australia and the Commission
of the European Communities for Cooperation in Science and Technology, signed at
Canberra on 12 November 1986, which provides for cooperation in fields of science and
technology of mutual interest through the exchange of information arising from research
in specific fields;

CONSIDERING the importance of scientific and technical research to Australia and the
Community, and the mutual benefits that may be derived if the Parties facilitate further
cooperation; and

DESIRING to establish a framework for the conduct of collaboration in scientific and

technical research which will extend and strengthen collaboration in areas of common
interest and encourage the application of results of such collaboration to the social and
economic benefit of Australia and the Community;

HAVE AGREED AS FOLLOWS:

**ARTICLE** **1**

**Definitions**

**1.** **"Cooperative activity" means an activity carried on under this Agreement, and**
**includes joint research.**

**2.** **"Information" means 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 research pursuant thereto.**

**3.** **Intellectual Property shall have the meaning defined in Article 2 of the**
**Convention establishing the World Intellectual Property** **Organization,** **done at**
**Stockholm,** **14** **Jury** **1967.**

**4.** **"Joint** **research"** **means research implemented and/or funded by the joint**
**contributions of the Parties and with collaboration from participants of both**
**Parties, where appropriate.**

**5.** **"Participant"** **means any** **person,** **legal** **entity,** **research institute or any other body**
**participating in a research project under this** **Agreement,** **including the Parties**

**themselves.**

**ARTICLE2**

**Objectives**

**The Parties shall** **encourage** **and,** **within** **the terms of this** **Agreement,** **facilitate**
**cooperation between Australia and the Community in fields of** **common** **interest where**
**the** **Parties** **are supporting research** **and** **development activities to advance science and/or**
**technology relevant to those** **fields** **of interest**

**ARTICLE 3**

**Principles**

**Cooperation under this Agreement shall be conducted on the basis of the following**
**principles:**

**(a)** **mutual benefit;**

**(b)** **timely exchange of information** **which may affect** **the actions of participants**
**in cooperative activities;**

**(c)** **within the framework of applicable laws and regulations relating to**
**intellectual property, effective protection and equitable distribution of**
**intellectual property, as set out in the Annex to this Agreement, which**
**forms an integral part** **thereof;** **and**

**(d)** **pursuit** **of** **economic and social benefits of cooperative activities to the**
**Community** **and** **Australia** **in view** **of the contributions made to cooperative**
**activities by the respective participants and Parties.**

**ARTICLE 4**

**Scope**

**1.** **Cooperation may include the following activities:**

**(a)** **participation** **of** **persons and legal entities, research institutes, and other**
**bodies, including the Parties themselves, in research projects conducted** **by**
**Australia or the Community, in accordance with the procedures in force**
**for each** **Party;**

**(b)** **shared use of research facilities in pursuit of cooperation on research**
**projects;**

**(c)** **visits and exchanges of** **scientists,** **engineers and other appropriate**
**personnel** **for the purposes** **of** **participating in seminars, symposia and**
**workshops relevant to** **cooperation** **under this** **Agreement;**

**(d)** **exchange of information such as practices, laws, regulations and**
**programmes relevant to cooperation under this** **Agreement;** **and**

**(e)** **other activities as may be mutually determined by the Joint Science and**
**Technology Cooperation Committee in accordance with the applicable**
**policies and programmes of the Parties.**

***7©**

**2.** **For the purposes of this** **Agreement,** **cooperation shall be restricted to activities**
**in the following areas:**

**(a)** **biotechnology;**
**(b)** **medical and health research;**
**(c)** **marine science and technology;**
**(d)** **environment;**
**(e)** **information technologies; and**
**(f)** **communication technologies.**

**3.** **Research projects shall not proceed under this Agreement until the Parties have**
**endorsed a Technology** **Management** **Plan, as described in the Annex to this**
**Agreement, and which is agreed by the participants.**

**ARTICLE 5**

**Joint Science and Technology Cooperation Committee**

**1.** **Cooperative activities under this Agreement shall be administered by a Joint**
**Science and Technology Cooperation Committee comprising representatives of**
**each Party.**

_**2.**_ **The functions of the Joint Science and Technology Cooperation Committee shall**

**be to:**

**(a)** **promote and review the activities envisaged under the Agreement;**

**(b)** **authorise activities falling under Article 4,l(e) of** **this** **Agreement as being**
**cooperative activities to which this Agreement applies;**

**(c)** **advise the Parties on ways to enhance cooperation consistent with the**
**objectives and principles set out in this Agreement; and**

**(d)** **provide a report annually to the Parties on the level, status and**
**effectiveness of cooperative activities undertaken under this Agreement**

_**A*\**_

3. The Joint Science and Technology Cooperation Committee shall endeavour to
meet once a year, with such annual meetings being held alternately in Europe and
Australia. Other meetings may be held as mutually determined.

Decisions of the Joint Science and Technology Cooperation Committee shall be
reached by consensus. Minutes, comprising a record of the decisions and principal
points discussed, shall be taken at each meeting. These Minutes shall be agreed
by those persons selected from each side to jointly chair the meeting, and shall,
together with the annual report, be available to the next bilateral Ministerial
meeting between Australia and the Community.

ARTIOUE6

Dissemination and **utilization** of information

The dissemination and utilization of information, and management, allocation and
exercise of intellectual property rights, resulting from joint research under this
Agreement, shall be subject to the principles set out in the Annex to this Agreement.

**ARTICLE 7**

**Funding**

1. Cooperative activities shall be subject to the availability of funds and to the
applicable laws and regulations, policies and programmes of Australia and the
Community.

2. Costs incurred by participants in cooperative activities subject to this Agreement
shall not require any transfer of funds from one Party to the other.

3. Costs incurred by or on behalf of the Joint Science and Technology Cooperation
Committee shall be met by the Party to whom the members are responsible.
Costs, other than those of travel and accommodation, which are directly associated
with meetings of the Joint Science and Technology Cooperation Committee, shall
be met by the host Party.

_**Ah**_

**ARTICLE 8**

**Entry of personnel and equipment**

Each Party shall take all reasonable steps and use its best efforts to facilitate entry to and
exit from its territory of personnel, material and equipment of the other Party engaged
in or used in cooperative activities under this Agreement

**ARTICLE 9**

**Other Agreements**

This Agreement is without prejudice to cooperation which may be undertaken pursuant
to other Agreements or arrangements between the Parties.

**ARTIOJE** **10**
**Territorial application of** this **Agreement**

This Agreement shall apply, on the one hand, to the territories in which the Treaty
establishing the European Economic Community is applied and under the conditions laid
down in that Treaty and, on the other hand, to the territory of Australia.

ARTICLE 11

Entry into force and termination

1. This Agreement shall enter into force on the date on which the Parties shall have
notified each other in writing that their legal requirements for the entry into force of this
Agreement have been fulfilled.

2. The Agreement may be amended or extended by agreement of the Parties.
Amendments or extensions shall enter into force on the date on which the Parties shall

have notified each other in writing that their legal requirements have been fulfilled.

3. This Agreement may be terminated at any time by either Party upon twelve
months written notice. The expiration or termination of this Agreement shall not affect
the validity or duration of any arrangements made under it, or the rights and obligations
established pursuant to the Annex to this Agreement.

**13**

**ARTICIJE12**

**This Agreement** **is drawn up** **in duplicate** **in** **the Danish, Dutch, English, French, German,**
**Greek, Italian, Portuguese,** **Spanish** **languages,** **each of these texts** **being** **equally authentic.**

**IN WITNESS WHEREOF the undersigned have signed this Agreement**

**DONE AT** **, this day of** **, One thousand nine hundred and ninety-**

**FOR** **FOR THE EUROPEAN** **ECONOMIC**

**AUSTRALIA:** **COMMUNITY:**

_**AU**_

**ANNEX** **ON** **THE**

**DISSEMINATION AND UTILIZATION OF INFORMATION AND**

**MANAGEMENT, AI LOCATION AND EXERCISE**

**OF** **INTELLECTUAL** **PROPERTY RIGHTS**

**I.** **OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS**

**1.** **All research carried** **out pursuant** **to this** **Agreement shall be** **"joint** **research".** **The**
**participants shall jointly develop joint technology management plans** **(TMPs)** **[1]** **in**
**respect of the ownership and use, including publication, of information and**
**Intellectual Property (IP) to be created in the course of joint research. Those**
**plans shall be approved by the Parties before the conclusion of any specific**
**research and development cooperation contracts to which they refer. The TMPs**
**shall be developed taking into account the aims of** **the** **joint research, the relative**
**contributions of the participants, the advantages and disadvantages of licensing** **by**
**territory or for fields of use, requirements imposed by applicable laws, dispute**
**settlement procedures,** **and** **other factors deemed appropriate by the participants.**
**The rights and obligations concerning the research generated by visiting**
**researchers in respect of** **IP** **shall also be addressed in the TMPs.**

**2.** **Information or** **IP** **created** **in** **the course of joint research and not addressed** **in** **the**
**TMP shall be allocated, with the approval of the Parties, according to the**
**principles set out in the TMP, including dispute resolution.** **In case of**
**disagreement which for sound reasons cannot be resolved by the agreed dispute**
**settlement procedure, the dispute may be referred to the Joint Science and**
**Technology Cooperation Committee which shall endeavour to mediate between**
**the participants.** **If,** **having exhausted the procedures described above, the**
**disagreement continues, such information or IP shall be owned jointly by all the**
**participants involved in the joint research from which the information or IP**
**results. Each participant** **to whom this** **provision applies shall have the** **right** **to use**
**such information or IP for his own commercial exploitation with no geographical**
**limitation.**

**3.** **Each Party shall ensure that the other Party and its participants may have the**
**rights to IP allocated in accordance with the principles set out in Section I of this**
**Annex.**

**The indicative features of such TMPs are set out in the Appendix.**

_**AS**_

While maintaining the conditions of competition in areas affected by the
Agreement each Party shaii endeavour to ensure that rights acquired pursuant to
this Agreement and arrangements made under it are exercised in such a way as
to encourage in particular:

(i) the dissemination and use of information created, disclosed, or otherwise
made available, under the Agreement; and

_(il)_ the adoption and implementation of international standards.

IL **COPYRIGHT** WORKS

Copyright belonging to the Parties or to their participants shall be accorded
treatment consistent with the Berne Convention (Paris Act 1971).

III. SCIENTIFIC **LITERARY** WORKS

Subject to Section IV, unless otherwise agreed in the TMP. publication of results
of research shall be made jointly by the Parties or participants to that joint
research. Subject to this general role, the following procedures shall apply:

1. In the case of publication by a Party or public bodies of that Party of
scientific and technical journals, articles, reports, books, including video and
software, arising from joint research pursuant to this Agreement, the other
Party shall be entitled to a worldwide, non-exclusive, irrevocable, royaltyfree licence to translate, reproduce, adapt, transmit and publicly distribute
such works.

2. The Parties shall ensure that literary works of a scientific character arising
from joint research pursant to this Agreement and published by
independent publishers shall be disseminated as widely as possible.

3. **All** copies **of a copyright work to** be **publicly distributed and prepared**
**under this provision shall indicate** the **names of the author or authors of**
**the work unless an author or authors expressly declines or decline to be**
**named. Copies shall also bear a clearly visible acknowledgement of the**
**cooperative support of the Parties.**

_**A6**_

**IV.** **UNDISCLOSED INFORMATION**

A Documentary undisclosed information

1. Each Party or its participants, as appropriate, shall identity at the earliest possible
moment and preferably in the TMP the information that it wishes to remain
undisclosed in relation to this Agreement, taking into account, among other things,
the following criteria:

(i) secrecy of the information in the sense that the information is not, as a
body or in the precise configuration or assembly of its components,
generally known among or readily accessible by lawful means to experts in
the field;

(ii) the actual or potential commercial value of the information by virtue of its
secrecy; and

(iii) 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.

The Parties and the participants may in certain cases agree that, unless otherwise
indicated, parts or all of the information provided, exchanged or created in the
course of joint research pursuant to this Agreement may not be disclosed.

2. Each Party shall ensure that undisclosed information under this Agreement and
its privileged nature is readily recognizable as such by the other Party, for example
by means of an appropriate marking or restrictive legend. This also applies to any
reproduction of the said information, in whole or in part.

3. A Party receiving undisclosed information pursuant to this Agreement shall
respect its privileged nature. These limitations shall automatically terminate when
this information is disclosed by the owner without restriction to experts in the
field.

4. Undisclosed information communicated 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
authorised for the specific purposes of the joint research under way, provided that
any such undisclosed information shall be disseminated only on conditions of
confidentiality and shall be readily recognizable as such, as set out above.

# **-H**

**5.** **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 Paragraph 4 above.**
**TheParties shall cooperate** **in** **developing procedures for requesting and obtaining**
**prior written consent for such wider dissemination,** **and** **each** **Party shall grant** **such**
**approval to the extent permitted by** **its** **domestic policies, regulations and laws.**

**B.** **Non-documentary undisclosed** **information**

**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** **the** **Agreement,** **provided,** **however, that**
**the recipient of such undisclosed or other confidential or privileged information**
**has been made aware of the confidential character of the information**
**communicated at the time such communication is made.**

**C.** **Control**

**Each Party shall endeavour to ensure that undisclosed information received by it**
**under this Agreement shall be controlled as provided therein. 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 Subsections A or B above, it**
**shall immediately inform the other Party. The Parties shall thereafter consult to**
**define an appropriate course of action.**

###### **_12_**

**APPENDIX**

**Indicative features of a**
**Technology Management Plan (TMP)**

**The TMP is a specific agreement to be concluded between the participants about the**
**implementation of joint research and the respective rights and obligations of the**
**participants. With respect to IP, the TMP will normally address, among other things,**
**ownership,** **protection,** **user** **rights** **for research and development purposes, exploitation**
**and** **dissemination,** **including** **arrangements for joint publication, the** **rights** **and obligations**
**of visiting researchers and dispute settlement procedures. The TMP may also address**
**foreground and background** **information,** **licensing and deliverables.**

_**«12**_

**ISSN 0254-1475**

**COM(93) 269 final**

#### **DOCUMENTS**

**EN** **11 15**

**Catalogue number : CB-CO-93-299-EN-C**

**ISBN 92-77-56675-2**

**Office** **for** **Official Publications** **of** **the European Communities**

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