CELEX: 51993PC0269
Language: en
Date: 1993-06-10
Title: Proposal for a COUNCIL DECISION concerning the conclusion of an Agreement relating to scientific and technical cooperation between the European Economic Community and Australia

COMMISSION          OF THE EUROPEAN                             CCSVIVnJNITIES
                                                C0M(93) 269 f i n a l - SYN 461
                                                 B r u s s e l s , 10 June 1993
                                 Proposal f o r 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)
 ---pagebreak---                          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 propertyrightswithin 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.
 ---pagebreak---                                                                                    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.
 ---pagebreak---                                                                                        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 thefinancingprovisions, 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.
 ---pagebreak---                                                                                  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 Parliament2,
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 formalframeworkfor 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°
 ---pagebreak---                                        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
 ---pagebreak---                                        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:
 ---pagebreak---                                       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 thosefieldsof interest
                                      ARTICLE 3
                                       Principles
Cooperation under this Agreement shall be conducted on the basis of the following
principles:
 ---pagebreak---    (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.
 ---pagebreak---                                                                                      *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
 ---pagebreak---                                                                               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.
 ---pagebreak---                                                                                          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.
 ---pagebreak---                                                                                   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:
 ---pagebreak---                                                                                   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 therightto 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.
 ---pagebreak---                                                                                   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, royalty-
            free 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.
 ---pagebreak---                                                                                    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.
 ---pagebreak---                                                                                 -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.
 ---pagebreak---                                                                                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, userrightsfor research and development purposes, exploitation
and dissemination, including arrangements for joint publication, therightsand obligations
of visiting researchers and dispute settlement procedures. The TMP may also address
foreground and background information, licensing and deliverables.
 ---pagebreak---                                                                            «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
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