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Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts

Contents

  1. Effective date
  2. Application
  3. Context
  4. Definitions
  5. Policy statement
  6. Policy Requirements
  7. Consequences
  8. Roles and Responsibilities of Industry Canada
  9. References
  10. Enquiries

1. Effective date


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2. Application


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3. Context


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4. Definitions

For the purposes of this Policy:

"Background IP" (« Acquis »)
means all Intellectual Property that is not Foreground IP.
"Commercial Exploitation" (« Exploitation commerciale »)
means any use, modification, transformation and/or dissemination of the Foreground IP that generates, or is intended to generate, revenues.
"Contracting Department" (« Autorité contractante »)
means the Department entering into a Crown Procurement Contract.
"Contractor"
(« Entrepreneur ») means any party or parties, collectively, to a Crown Procurement Contract not defined as the Crown.
"Crown" (« État, la Couronne ou Sa Majesté »)
means Her Majesty the Queen in Right of Canada, including departmental corporations as defined in the Financial Administration Act.
"Crown Procurement Contract" (« Marché conclu avec l'État »)
means a 'contract' as defined in the Treasury Board Contracting Policy.
"Deputy Head" (« Sous-ministre »)
means the deputy head, the chairperson, the president or other chief executive officer of a Responsible Department and any person having the appropriate capacity to act on her or his behalf.
"Deputy Head of a Contracting Department" (« Sous-ministre de l'Autorité contractante »)
means the deputy head, the chairperson, the president or other chief executive officer of a Contracting Department and any person having the appropriate capacity to act on her or his behalf.
"Foreground IP" (« Élément original »)
means IP first conceived, developed, produced or reduced to practice as part of the work under a Crown Procurement Contract.
"Intellectual Property" (« Propriété intellectuelle »)
means for the purposes of this policy, any rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields including all intellectual creation legally protected through patents, copyright, industrial design, integrated circuit topography, and plant breeders' rights, or subject to protection under the law as trade secrets and confidential information. Intellectual Property does not include prototypes or any other physical embodiments of intellectual creation when such physical embodiments are deliverables of a Crown Procurement Contract. Please see the Implementation Guide – Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts for more information.
"Responsible Department" (« Ministère responsable »)
means the Department for which good(s) and/or service(s) are being acquired under the Crown Procurement Contract.

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5. Policy statement

5.1 Objective

The objective of this Policy is to enhance Canada's economic growth by increasing commercialization of Intellectual Property. To this end, the contractor is to own the rights to Foreground Intellectual Property created as a result of a Crown Procurement Contract. This default position is subject to exceptions and exemption found in Appendix A.

5.2 Expected results


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6. Policy Requirements


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7. Consequences

Deputy heads or their designates are responsible for ensuring that corrective actions are taken to address significant issues of non-compliance with this Policy.


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8. Roles and Responsibilities of Industry Canada

As per the Department of Industry Act, the powers, duties and functions of the Minister extend to and include all matters relating to patents, copyrights, trade-marks, industrial designs and integrated circuit topographies. IC plays a role in sponsoring, overseeing and administering this Policy and will undertake activities assigned to it under this Policy


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9. References

9.1 Relevant legislation

9.2 Related Policies/Publications:

10. Enquiries

For questions on this Policy instrument, please contact Industry Canada Web Services Centre at 1-800-328-6189.


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Appendix A – Exceptions to Contractor Ownership and Treasury Board Exemption

By default, the Contractor is to own the Foreground IP arising under Crown Procurement Contracts, unless the Crown claims one of the exceptions listed below, or applies for a TB exemption from this Policy through a TB Submission. Under the Crown Procurement Contract, the Crown may claim ownership of the Foreground IP for the following reasons (please see Implementation Guide for further details, and for model clauses consistent with this Policy):

  1. National security.
  2. Where statutes, regulations or prior obligations of the Crown to a third party or parties preclude Contractor ownership of the Foreground IP.
  3. When the Contractor declares in writing that he/she is not interested in owning the Foreground IP.
  4. Where the main purpose of the Crown Procurement Contract, or the deliverables contracted for, is:

    • 4.1 To generate knowledge and information for public dissemination.
    • 4.2 To augment an existing body of Crown Background as a prerequisite to the transfer of the expanded Background to the private sector, through licensing or assignment of ownership (not necessarily to the original contractor), for the purposes of Commercial Exploitation.
    • 4.3 To deliver a not-yet fully developed component or subsystem that will be incorporated into a complete system at a later date, as a prerequisite to the planned transfer of the complete system to the private sector, through licensing or assignment of ownership, for the purposes of Commercial Exploitation.
  5. Where the Foreground IP consists of material subject to copyright, with the exception of computer software and all documentation pertaining to that software.
  6. Unused.
  7. Unused.
  8. Treasury Board Exemption

    The Crown may take ownership of Intellectual Property in circumstances where it is justified but not provided for in one of the exceptions listed above, and the Responsible Department has, in collaboration with the Contracting Department, sought and obtained Treasury Board approval for such an exemption. Prior to seeking an exemption, it is important to consider whether Foreground IP ownership is necessary, or if a license would suffice.


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Appendix B – Licensing Intellectual Property

Contractor ownership of Foreground IP does not preclude the Crown from using the Foreground IP, provided that the Crown obtains a royalty-free licence to have the right to use, or have used by a third party, the Foreground IP owned by the Contractor. The contractor shall be required to obtain from its subcontractors those ownership or licence rights that the Contractor agrees, in the Crown Procurement Contract, to provide to the Crown. Examples of the licensing provisions for such situations can be found in the Model Clauses (Implementation Guide – Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts).

Contractor Owned Intellectual Property

Crown Owned Intellectual Property

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