Source: EURLEX
Language: en
Format: md

No C 134 / 8 EN Official Journal of the European Communities 29 . 4 . 97

AGREEMENT

on scientific and technological cooperation between the European Community and the Republic

of South Africa

THE EUROPEAN COMMUNITY ( hereinafter ' the Community '), on the one hand, and

THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA acting on behalf of the Republic
of South Africa ( hereinafter ' South Africa '), on the other hand

hereinafter referred to as the ' Parties ',

CONSIDERING the importance of science and technology for their economic and social devel ­

opment ;

WHEREAS the Community and South Africa are pursuing research and technological devel ­
opment including demonstration in a number of areas of common interest and mutual benefit
may be derived if the Parties engage in cooperative activities ;

WHEREAS such cooperation should also be to the benefit of the Southern African Devel ­
opment Community where possible and justified ;

WHEREAS, for this purpose, it is desirable that a framework for cooperation be established ;

WHEREAS this scientific and technological cooperation Agreement forms part of the global
cooperation between the Community and its Member States, on the one hand, and South
Africa, on the other hand ;

WHEREAS, by Decision No 1110 / 94 / EC, the European Parliament and the Council of the
European Union adopted a framework programme of European Community activities in the
field of research and technological development and demonstration ( 1994 to 1998 ), hereinafter
called the ' fourth framework programme ';

WHEREAS, without prejudice to the relevant provisions of the Treaty establishing the

European Community, this Agreement and any activities entered into under it will in no way
affect the powers vested in the Member States to undertake bilateral activities with South
Africa in the fields of science, technology, research and development, and to conclude, where

appropriate, agreements to that end,

HAVE AGREED AS FOLLOWS :

29 . 4 . 97 | EN | Official Journal of the European Communities No C 134 / 9

Article 1

( c ) within the framework of applicable laws and regu ­

lations, effective protection of intellectual property

Objectives and equitable sharing of intellectual property rights,

as set out in the Annex, which forms an integral part
The Parties shall encourage and facilitate cooperation of this Agreement .
between the Community and South Africa in fields of
common interest where they are supporting research and
development including demonstration activities to Article 4
advance science and / or technology .

Objectives

Article 4

Scope of the cooperation

Article 2

Definitions

For the purposes of this Agreement :

( a ) ' Cooperative activity ' means any activity carried out

pursuant to this Agreement and includes joint
research ;

( b ) ' 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 participants
engaged in cooperative activity, including, where
necessary, the Parties themselves ;

( c ) ' Intellectual property ' shall have the meaning defined

in Article 2 of the Convention establishing the World
Intellectual Property Organization, done at
Stockholm, 14 July 1967 ;

( d ) ' Joint research ' means research, technological devel ­

opment and demonstration that is implemented with
or without financial support from either or both
Parties and that involves collaboration by
participants from both the Community and South
Africa ;

( e ) ' Participant ' or ' Research entity 5 means any person,

legal entity, university, research institute or any other
body or undertaking participating in a cooperative

activity, including the Parties themselves .

Article 3

Principles

Cooperation within the meaning of this Agreement may
cover all research and technological development and
demonstration ( hereinafter referred to as RTD ) activities
related to the fourth framework programme and all
similar RTD activities in South Africa .

Article 5

Modalities of cooperation

Cooperation may take the following forms :

( a ) ( i ) participation of South Africa research entities in

RTD projects related to the fourth framework
programme and a reciprocal participation of
research entities of the European Community in
South Africa projects in similar areas of
research ; as regards South African participation
in Community RTD projects, such participation
shall be subject to the rules applicable for the
participation of undertakings, research centres

and universities in the specific programmes of
RTD of the Community ( x );

( ii ) for the purpose of participation by South Africa

research entities in the specific programme of
RTD in the field of cooperation with third
countries and international organizations ( 1994
to 1998 ) South Africa is considered a developing

country ;

( b ) shared use of research facilities ;

( c ) visits and exchanges of research workers, engineers

and technicians ;

( d ) participation by experts in seminars, symposia and

workshops ;

Cooperation shall be conducted on the basis of the ( e ) scientific networks and training of researchers ;
following principles :

( a ) mutual benefit ; (') Council Decision 94 / 763 / EC of 21 November 1994
concerning the rules for the participation of undertakings,
( b ) timely exchange of information which may affect the research logical centres development and universities and demonstration in the research activities, techno of the ­

actions of participants in cooperative activities, and European Community ( OJ No L 306, 30 . 11 . 1994, p. 8 ).

No C 134 / 10 EN Official Journal of the European Communities 29 . 4 . 97

( f ) exchange of information on practices, laws, regu ­

lations and programmes relevant to cooperation
pursuant to this Agreement ;

( g ) other modalities as may be recommended by the

Joint Science and Technology Cooperation
Committee in accordance with the applicable policies
and programmes of the Parties .

With the exception of projects under ( a ) ( ii ) above, joint

RTD projects shall proceed once the participants have
concluded a joint technology management plan ( JTMP ),
as indicated in the Annex to this Agreement .

Article 6

Joint Science and Technology Cooperation Committee

( JSTCC )

( a ) A Joint Science and Technology Cooperation
Committee will be established in order to administer

this Agreement ; it will be composed of represen ­
tatives of the Commission and of South Africa ; it
shall adopt its rules of procedure .

( b ) The functions of the JSTCC shall be to :

1 . promote and review the various cooperation
activities envisaged within the meaning of this
Agreement ;

2 . make recommendations pursuant to Article 5 ( g );

3 . advise the Parties on ways to enhance cooperation

consistent with the principles set out in this
Agreement ;

4 . review the efficient and effective functioning of

the Agreement ;

5 . provide a report annually to the Parties on the

level, status and effectiveness of cooperation
undertaken pursuant to this Agreement .

( c ) The JSTCC shall meet as mutually agreed, meetings

being held alternately in the Community and South
Africa .

( d ) Costs incurred by or on behalf of the 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 Committee, shall be met by the host
Party .

Article 7

Funding

( a ) Cooperative activities shall be subject to the avail ­

ability of funds and to the applicable laws and regu ­
lations, policies and programmes of the Parties .

( b ) Costs incurred by participants in cooperative
activities shall not require any transfer of funds from
one Party to the other, except for the participation
referred to under Article 5 ( a ) ( ii ).

Article 8

Entry of personnel and equipment

Each Party shall take all reasonable steps and use its best
efforts, within existing laws and regulations, to facilitate
entry to and exit from its territory of personnel, material
and equipment of the participant(s ) engaged in or used
in cooperative activities within the meaning of this
Agreement .

Article 9

Dissemination and utilization of information

Research entities established in South Africa, partici ­
pating in Community RTD projects, shall, as regards
ownership, dissemination and utilization of information
and intellectual property arising from such participation,
be subject to the rules for the dissemination of the
research results from the specific programmes of RTD of
the Community, and the Annex to this Agreement .

Research entities established in the Community, taking
part in South African RTD projects, shall, as regards
ownership, dissemination and utilization of information
and intellectual property arising from such participation,
have the same rights and obligations as those of South
African research entities, and be subject to the Annex to
this Agreement .

Article 10

Territorial application

This Agreement shall apply, on the one hand to the terri ­

tories in which the Treaty establishing the European
Community is applied and pursuant to the conditions
laid down in that Treaty and, on the other hand, to the
territory of South Africa .

29 . 4 . 97 | EN [ Official Journal of the European Communities No C 134 / 11

Article 11 ( d ) This Agreement may be terminated at any time by

Entry into force ; termination ; settlement of disputes

( a ) This Agreement shall enter into force on the date on

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

( b ) This Agreement shall be concluded for the duration

of the fourth framework programme and will be
renewable by common agreement between the
Parties ( tacit renewal ) for the specific programmes
implementing subsequent framework programmes of
the Community .

( c ) This Agreement may be amended by agreement of

the Parties . Amendments shall enter into force on the

date on which the Parties have notified each other in

writing that their legal requirements have been
fulfilled .

either Party on a six months ' written notice . The
expiration or termination of this Agreement shall not
affect the validity or duration of any arrangements
made pursuant to it, or any specific rights and obli ­
gations that have accrued in compliance with the
Annex .

( e ) All questions or disputes related to the interpretation

or implementation of this Agreement shall be settled
between the Parties by mutual agreement .

Article 12

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

ANNEX

Annex on the dissemination and utilization of information and management, allocation and exercise of intel ­

lectual property rights

I. OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS

1 . All research carried out pursuant to this Agreement shall be ' joint research '. The participants

performing the joint research shall develop joint technology management plans ( JTMPs ) which
shall contain, as a minimum, principles in respect of the ownership and use, including publication,
of information and intellectual property ( IP ) to be created in the course of the joint research (*).

The JTMPs shall be approved by the responsible funding agency or department of the Party
involved in financing the research, before the conclusion of the specific research and development
cooperation contracts to which they are attached . The JTMPs 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, the need for dispute settlement procedures and other factors deemed appropriate by the
participants . The rights and obligations concerning the research and information generated by
visiting researchers in respect of IP shall also be addressed in the JTMPs .

2 . Information or IP created in the course of joint research and not addressed in a JTMP shall be

allocated following the procedures set out in 1,1 according to the principles set out in that JTMP . In
case of disagreement, which cannot be resolved by the agreed dispute resolution procedure, such
unallocated information or IP shall be owned jointly by all the participants involved in the joint
research from which the information or IP results, and each participant to whom this provision
applies shall have the right to use such information or IP for his / her own commercial exploitation
with no geographical limitation .

3 . In accordance with applicable laws, each Party shall ensure that the other Party and its participants

may have the rights to IP allocated to them in accordance with the principles set out in section I of
this Annex .

(*) The indicative features of such JTMPs are set out in the Appendix .

No C 134 / 12 fEN | Official Journal of the European Communities 29 . 4 . 97

4 . While maintaining the conditions of competition in areas affected by the Agreement, each Party

shall endeavour to ensure that rights acquired pursuant to the Agreement, and arrangements made
pursuant to 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,

pursuant to the Agreement ;

( ii ) the adoption and implementation of international standards .

II . 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

Without prejudice to Section IV, unless otherwise agreed in the JTMP, any publication of results of

the joint research shall be made jointly by the participants . In addition to the foregoing general rule,
the following procedure 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 the Agreement, the other Party shall be entitled, with written permission from the publisher, to a
worldwide, non-exclusive, irrevocable, royalty-free licence to translate, reproduce, adapt, transmit
and publicly distribute such works .

2 . The Parties shall endeavour to disseminate literary works of a scientific character arising from joint

research pursuant to the Agreement and published by independent publishers as widely as possible .

3 . All copies of a copyright work to be publicly distributed and prepared pursuant to 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 . Copies shall also bear a clearly visible acknowledgement of the cooperative
support of the Parties .

IV . UNDISCLOSED INFORMATION

A. Documentary undisclosed information

1 . Each Party or its participants shall identify at the earliest possible moment, and preferably in the

JTMP, the information that it wishes to remain undisclosed in relation to this Agreement,

taking into account, among other things, the following criteria :

— 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,

— 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 . Participants shall not normally be required to provide undisclosed information to the Parties .

Should the Parties become aware of such information, they shall respect the privileged nature
thereof, and it shall not be further disclosed by, within, or between the Parties, without the
written consent of the participant(s ) to whom the information belongs . These limitations shall

automatically terminate when such information is disclosed by the owner, without restriction, to
experts in the field .

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3 . Each Party shall ensure that undisclosed information, communicated between them pursuant to

the Agreement, and its ensuant 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 .

4 . Undisclosed information communicated pursuant to the Agreement, and received from the

other Party, may be disseminated by the receiving Party to persons within or employed by the
receiving Party and other concerned departments or agencies of the receiving Party authorized
for the specific purposes of the joint research under way, provided that any undisclosed
information so disseminated shall be pursuant to a written agreement of confidentiality and
shall be readily recognizable as such, as set out above .

5 . With the prior written consent of the Party providing undisclosed information pursuant to the

Agreement, the receiving Party may disseminate such undisclosed information more widely than
otherwise permitted in paragraph 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 .

B. Non-documentary undisclosed information

Non-documentary undisclosed or other confidential or privileged information provided in seminars
and other meetings arranged pursuant to the 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 in Section IV A, provided, however, that the
recipient of such undisclosed or other confidential or privileged information has been made aware
in advanced and in written form of the confidential character of the information to be

communicated .

C. Control

Each Party shall make its best efforts to ensure that undisclosed information received by it
pursuant to the Agreement shall be controlled as provided therein . In one of the Parties becomes
aware that it will be, or may reasonably be expected to become, unable to meet the non-dissemi ­
nation provisions of paragraphs A and B, it shall immediately inform the Party likely to be affected
by the dissemination . The Parties involved shall thereafter consult to define an appropriate course
of action .

Appendix

Indicative features of a joint technology management plan ( JTMP )

The JTMP is part of the contract to be concluded between the participants in joint research defining their
respective rights and obligations . With respect to intellectual property rights, the JTMP will normally
address, inter alia \ 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 JTMP may also address foreground and background
information, the rules governing disclosure of undisclosed information, licensing and deliverables .