CELEX: 31994R1990
Language: en
Date: 1994-07-26 00:00:00
Title: Commission Regulation (EC) No 1990/94 of 26 July 1994 adopting the implementing provisions for the rules laid down in the first paragraph of Article 8 of Council Decision 92/272/EEC on the dissemination and exploitation of knowledge resulting from the specific programmes of research aid technological development of the Community

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31994R1990

Commission Regulation (EC) No 1990/94 of 26 July 1994 adopting the implementing provisions for the rules laid down in the first paragraph of Article 8 of Council Decision 92/272/EEC on the dissemination and exploitation of knowledge resulting from the specific programmes of research aid technological development of the Community  

Official Journal L 200 , 03/08/1994 P. 0004 - 0009

COMMISSION REGULATION (EC) No 1990/94  of 26 July 1994 adopting the implementing provisions for the rules laid down in the first paragraph  of Article 8 of Council Decision 92/272/EEC on the dissemination and exploitation of knowledge  resulting from the specific programmes of research aid technological development of the CommunityTHE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Decision No 92/272/EEC of 29 April 1992 on the dissemination and  exploitation of knowledge resulting from the specific programme of research and technological  development of the Community  (1), and particularly the second paragraph of Article 8 thereof, Whereas, by its Decision 90/221/Euratom, EEC  (2), the Council has adopted a third Framework  Programme for Community activities in the field of research and technological development for the  period 1990-1994, which states that the measures for the dissemination and exploitation of  knowledge, and in particular the definition and implementation of centralised action, shall be the  subject of a decision by the Council; Whereas such has been adopted under the form of Decision 92/272/EEC; and whereas Article 8 of that  Decision sets out the rules applicable to the execution of the centralized action; Whereas the Euratom Treaty contains detailed provisions for the dissemination of information which  apply, inter alia, to nuclear research programmes; Whereas, under the terms of the first paragraph of Article 8 of Decision 92/272/EEC, the rules set  out are applicable while respecting pre-existing rights; Whereas it is necessary to ensure the coherence of schemes for disseminating the knowledge  resulting from specific programmes in the Framework Programme and that such coherence must be based  on general rules which guarantee the protection of the legitimate interests of the public and  private contracting parties and of the rights linked to the obtaining and exploitation of the  results, as well as their exploitation in conformity with the Community's interests, particular  with respect to its economic and social cohesion; Whereas Article 130 f of the Treaty states that Community activities in the field of research and  technological development are particularly aimed at strengthening the scientific and technological  bases of European industry and encouraging it to become more competitive at international level; Whereas shared-cost contracts have become the predominant means of implementing the Community's  specific programmes of research and technological development and account for the greatest portion  of the total financing allocated for the entire Framework Programme; Whereas under these contracts work is often carried out by several partners from both industry and  the specific world working in cooperation to implement one or more research and technological  development projects and having ownership of the results, since the Community does not generally  involve itself directly in the work carried out under contracts of this kind; Whereas the increasing number of these multi-partner projects and the industrial component in  various programmes has necessitated the adoption of harmonized contractual clauses concerning the  dissemination and exploitation of knowledge in connection with research and development contracts  concluded by the Commission and whereas account must be taken of the results of this contractual  practice, particularly in view of the large number of contracts and partners involved and the  rights which they have established; Whereas the solutions adopted through this contractual practice are basically compatible with the  rules set out in Article 8 of Decision 92/272/EEC; Whereas on 11 May 1992 the Council and the Commission adopted a Joint Declaration on the  negotiating approach in respect of the intellectual property aspects of scientific and technical  agreements between the Community and non-member countries, which underlines in particular the need  to safeguard the mutual interests of the parties to such agreements and to encourage the adoption  of international standards; Whereas the provisions set out in this Regulation are in conformity with the opinion issued by the  committee set up by Decision 92/272/EEC, HAS ADOPTED THIS REGULATION: Article 1 1.  This Regulation adopts the arrangements for implementing the  rules laid down in the first paragraph of Article 8 of Decision 92/272/EEC. It shall apply to  knowledge resulting from the implementation of the programmes adopted to implement the third  Framework Programme for Community activities in the field of research and technological development  (1990 to 1994) through work undertaken directly or the cost of which is wholly supported by the  Community (direct actions) or work undertaken under a shared-cost contract (shared-cost actions).  It shall also apply to the information concerning and relevant to such knowledge. 2.  For the purposes of this Regulation: (1)  'knowledge` means results and inventions, whether patentable or not, obtained either directly  by the Community through its own research means, or in the execution of a research and  technological development contract concluded between the Community and third parties; (2)  'background information` means information, excluding knowledge, and any rights related to  such information, held by any contractor in the same or related fields to the research under his or  her shared-cost contract; (3)  'shared-cost contract` means a research and technological development contract concluded  between the Community and third parties under a shared-cost action; (4)  'contractor` means each party which has concluded a shared-cost contract with the Community,  and any affiliated company of each party as defined in that contract; (5)  'co-contractors` means the parties having concluded the same shared-cost contract with the  Community; (6)  'project` means one or several shared-cost contracts where the work covered has technical  interdependence, and which the parties to those contracts agree to consider as such; (7)  'programme` means each of the programmes referred to in paragraph 1; (8)  'commercial conditions` means open market payment and other conditions; (9)  'favourable conditions` means conditions that have a value lower than commercial conditions; (10)  'transfer conditions` means conditions that have a value lower than favourable conditions,  normally the cost of making licences and user rights available. Article 2 1.  Knowledge resulting from work under a shared-cost contract shall be owned by the  contractor who carry out the work. 2.  When two or more contractors undertake work under a shared-cost contract, they shall come to an  agreement between themselves on the allocation of ownership rights over the knowledge concerned. 3.  If, under the rules applicable, the persons employed or engaged by the contractors may claim  rights over the knowledge, the contractors shall take appropriate steps or reach appropriate  agreements to ensure that such rights may be exercised in a manner compatible with the proper  fulfilment of their obligations under such shared-cost contract pursuant to this Regulation. Article 3 1.  Contractors shall ensure that knowledge belonging to them which could be used in an  industrial or commercial application and whose nature justifies such a measure is protected to the  extent required in the interests of the Community and the contractors concerned and in accordance  with any applicable legal or contractual obligation. 2.  At the request or with the agreement of the contractors the Commission may, to the extent  required in the interests of the Community and of the said contractors, take adequate steps to  protect the knowledge in a country of its choice, if the contractors are unable or unwilling to  secure such protection on their own behalf of the knowledge belonging to them. In such an event the  Commission shall take upon itself such obligations regarding the granting of licences for the use  or exploitation of the knowledge in the country concerned as would have been assumed by the  contractors had they protected the knowledge on their own behalf, and the contractors concerned  shall be granted a non-exclusive licence in that country, under such conditions as may be set out  in the shared-cost contract. Article 4 1.  Contractors participating in the same project shall, on a royalty-free basis, make  available and grant licences and user rights to each other, in respect of knowledge, to the extent  necessary for the proper implementation of the work carried out under their respective shared-cost  contracts. 2.  The knowledge generated by any contractor shall be made available to other contractors  participating in the same programme and necessary user rights and licences granted on transfer  conditions, to the extent required for the execution of such other contractor's own research and  technological development work under their shared-cost contracts, provided that suitable  arrangements required by the contractor are concluded to ensure that the knowledge will not be used  for any other purpose than that for which it was supplied. 3.  The same conditions as specified in paragraph 2 shall apply to contractors who are taking part  in other programmes in associated fields or with related objectives and are established in the  Community and engaged in research and technological development activities there, provided that  their shared-cost contracts place the contractors under the obligation to provide equivalent access  to their own knowledge. 4.  Any person established in the Community engaged in research and technological development  activities there shall be entitled to request, on favourable conditions, any licences or user  rights concerning the knowledge which are necessary for the conduct of his or her research and  technological development activities in fields identical or related to that covered by the  shared-cost contract through which the knowledge is obtained. There shall be no refusal to grant such licences and user rights other than for reasons stipulated  in the shared-cost contracts and primarily concerned with both the major business interests of the  owner of the knowledge and his or her co-contractors and the interests of the Community. The  granting of such licences and user rights may however be refused if the owner of the knowledge or  any of his licencees has taken or is taking adequate steps to exploit or commercialize the  knowledge in the Community. 5.  The Community shall, on its request and for the purposes of research by its Joint Research  Centre, joint undertakings or any other structure set up on the basis of Article 130n of the  Treaty, receive, free of charge, a non-exclusive and irrevocable licence for the use of the  knowledge for research purposes, but shall keep this confidential and shall not be entitled to  grant sub-licences. Article 5 1.  The contractors shall be required to develop, exploit or commercialize the  knowledge which they own, or have it developed, exploited or commercialized within a contractually  agreed period, in accordance with the Community's interests and taking account of the objective of  strengthening the international competitiveness of European industry and the economic and social  cohesion of the Community. The Commission may, with the agreement of the contractors concerned, take steps to encourage the  use or exploitation of this knowledge in accordance with the interests of the Community. 2.  All contractors taking part in the same project shall be entitled to exploit or commercialize  knowledge resulting from that project and to have granted to them any licences and user rights  regarding such knowledge which are necessary for the purposes of exploitation or commercialization.  Such licences and user rights shall not confer the right to grant sub-licences except with the  formal agreement of the owner of the knowledge, and no fee shall be payable for them, unless the  shared-cost contracts stipulate other appropriate terms and exploitation arrangements based on the  nature of the project and on the specific requirements of products generated by it, the commercial  or non-commercial role of each contractor and his or her contribution to the project. 3.  Each shared-cost contract shall specify the circumstances under which other contractors taking  part in the same programme may have granted to them licences and user rights covering the knowledge  resulting from that contract which is necessary for the exploitation or commercialization of the  knowledge obtained under their project in the same programme on favourable conditions. The same conditions shall apply to contractors who are taking part in other programmes in  associated fields or with related aims and are established in the Community and engaged in research  and development activities there, provided that their shared-cost contracts place the contractors  under the obligation to provide equivalent access to their own knowledge on favourable conditions. 4.  Any person established in the Community who has a legitimate interest in obtaining licences or  rights to exploit or commercialize the knowledge shall be entitled to request that such licences or  rights be granted to him or her on commercial conditions unless the owner of the knowledge or his  or her licensees have taken adequate steps to exploit or commercialize the knowledge, or to have it  exploited or commercialized, within the agreed period. There shall be no refusal to grant the licences or user rights referred to in paragraph 3 and in  this paragraph other than for reasons stipulated in the shared-cost contract and connected with the  major business interests of the owner of the knowledge and his or her co-contractors and with the  interests of the Community, subject to such business interests not abusively restricting the  exploitation and commercialization of the knowledge in the Community. The granting of such licences  and user rights may, in particular, be refused when they relate to products, or the manufacture  thereof, or to services, which are or are about to become commercially available. Article 6 1.  The specific arrangements for implementing the rights and obligations under  Articles 4 and 5, particularly regarding duration, shall be laid down in the shared-cost  contracts. 2.  When concluding subcontracts or associated contracts as defined in their shared-cost contract,  contractors shall ensure, through the inclusion of appropriate clauses, that both the provisions,  of this Regulation and their contractual obliglations towards the Community are respected. Article 7 All contractors shall use reasonable care and diligence to determine the extent to  which the knowledge is or may be subject to contractual or legal limitations, obligations or  restrictions that might limit or affect the dissemination of the knowledge and background  information and thus substantially impede the smooth running of the project or the exploitation and  commercialization of the knowledge obtained in the project. They shall inform their co-contractors and other parties to the project of such contractual or  legal limitations, obligations or restrictions before signing the shared-cost contract or without  delay after work on the project has commenced, to enable the latter to assess the impact of those  limitations, obligations and restrictions in accordance with a procedure to be set out in the  shared-cost contracts. Article 8 1.  Knowledge resulting from work undertaken directly or the cost of which is wholly  supported by the Community shall be owned by the Community except if otherwise provided in the  relevant programme decision or contractual agreement. 2.  The Commission shall ensure that knowledge belonging to the Community which could be used in an  industrial or commercial application and whose nature justifies such a measure is protected to the  extent required by the interests of the Community and in accordance with any applicable legal or  contractual obligation. 3.  Knowledge belonging to the Community shall be made available to the contractors and to  interested third parties established in the Community who need the knowledge for their research and  technological development work or who undertake to exploit it in conformity with the Community's  interests. Such provision of knowledge may be subject to appropriate conditions, particularly  concerning the payment of fees. Article 9 1.  Each shared-cost contract shall specify conditions under which, upon request of the  parties concerned and on payment of an appropriate fee, the background information held by a  contractor may be made available to other contractors participating in the same project. Within the same project, background information shall be made available and related user rights  granted where and to the extent that such are necessary for the performance of the requesting  party's research and technological development work under that project and the contractor holding  the background information is free to disclose it and to grant the related user rights. 2.  The shared-cost contracts shall also specify the conditions for making available against  payment and upon request of other contractors participating in the same programme or in programmes  in associated fields or with related aims, background information which is necessary for the use of  the knowledge made available in accordance with Article 4 (2) and (3). Such conditions shall in  particular take into account any restrictions to the diffusion or the availability of background  information, as well as the legitimate interests of its holder. Article 10 1.  The Commission shall publish general information particularly concerning the aims,  total estimated cost and financial contribution from the Community, duration of research and  technological development work undertaken, together with general information on the progress to  date and the results achieved by projects carried out under the programmes. The official  designation of the bodies carrying out the work defined in the shared-cost contract shall also be  published together with the names of the laboratories involved, unless the contractors forbid this  on justified industrial or commercial grounds when that contract is signed. When providing for such publication, the Commission shall respect the confidentiality of  commercially sensitive information. 2.  The contractors shall agree with the Commission on the specific procedures for the publication  of knowledge or any information of a quality and interest which warrant wide dissemination,  provided that there are no objections to publication on the grounds of legitimate commercial  interests, protection of intellecutal property rights or the confidential nature of the knowledge  and information. They are required to provide the Commission with the information for publication  as specified in paragraph 1. Article 11 1.  The contractors shall inform the Commission of the results of research and  technological development work, indicate whether and to what extent they intend to have their  intellectual property rights protected, and subsequently report on the action taken in this  respect. 2.  On completion of the research and technological development work undertaken under the  shared-cost contracts, the contractors shall inform the Commission within a contractually agreed  period of their intentions regarding dissemination and exploitation of the results and subsequently  report on the action taken in this respect. 3.  The Commission and the contractors concerned shall define a policy for the restricted and  confidential dissemination of the reports concerning knowledge obtained in the execution of the  shared-cost contracts to the governments of the Member States, taking account of the major  commercial interests of both the said contractors and of the interests of the Community. 4.  With the explicit agreement of the contractors concerned, the Commission may communicate the  reports referred to in paragraphs 1, 2 and 3, confidentially to a non-member country or  international organisation under a convention or agreement concerning the exchange of information  concluded between the Community and the country or organisation in question. Article 12 1.  At the request of persons or bodies established in the Community and having a  legitimate interest in conformity with the principles of this Regulation, the contractors shall  provide them with all appropriate information on the existence of knowledge and the intellectual  property rights related to such knowledge. The Commission may inform these persons and bodies of the existence of this knowledge and these  rights, to the extent that such knowledge and rights are explicitly mentioned in the information  provided pursuant to Article 10 (2). 2.  The Commission may communicate confidentially to other Community institutions the reports  referred to in Article 11 (3), to the extent properly required by them. Article 13 1.  Without prejudice to Article 10 and subject to conditions to be specified in the  shared-cost contracts, the Commission and the contractors shall respect the confidential nature of  the facts, information, knowledge, documents and other elements communicated to them  confidentially, where disclosure could be prejudicial to one or the other of the parties. 2.  When disclosing confidential information, under the provisions of this Regulation, the  Commission and the contractors shall require the recipient to hold the information in confidence  and to use it only for the purpose for which it was disclosed. Article 14 For the entire duration of their shared-cost contract, and for a further two years  following its expiry or termination, contractors shall, subject to Article 13, give reasonable and  appropriate notification to standardization bodies on knowledge obtained under that shared-cost  contract which may contribute to the development of European or international standards. The  Commission shall inform the contractors as far as possible of any standardization work under way or  planned. Article 15 All communications or publications concerning progress to date or the results of work  carried out under a shared-cost contract, including such communications or publications made in  connection with seminars or conferences, must make appropriate mention of the programme under which  the work was done or the results were obtained and the aid provided by the Community. Article 16 1.  If persons established in a non-member country are entitled to take part in work  under a programme, the shared-cost contracts shall specify the terms of access to knowledge for  these persons, on the basis of mutual advantage, taking account of the relevant provisions of the  applicable agreements, the nature of the project and the scale of their participation in the  programme in question. 2.  Specific contractual arrangements shall implement the principles applicable to the  participation of States having concluded with the Community an agreement associating them with a  programme or part of a programme, in particular to ensure the compliance with the provisions of  such agreement concerning dissemination, evaluation and exploitation of knowledge in the framework  of the relevant programme or part of a programme. 3.  In specific cases involving certain programmes centred on geographically-restricted areas of  cooperation or economic development aid, provisions may be included in the programmes and contracts  concerned authorising the dissemination of appropriate information or the communication of certain  knowledge to recipients not covered by agreements with the Community on scientific and  technological cooperation. The specific arrangements for such dissemination shall be laid down in  agreement with those possessing the knowledge concerned. Article 17 This Regulation shall enter into force on the 20th day following 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, 26 July 1994. For the Commission Martin BANGEMANN Member of the Commission