ARCHIVED Contractor to Own Intellectual Property Rights in Foreground Information

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Legal text for SACC item

Public Works and Government Services Canada

01     Interpretation
02     Records and Disclosure of Foreground Information
03     Ownership of Intellectual Property Rights in Foreground Information
04     Licenses to Intellectual Property Rights in Foreground and 
Background Information
05     Contractor's Right to Grant Licenses
06     Waiver of Moral Rights
07     License to Intellectual Property Rights in Canada's Information
08     Transfer or License of Contractor's Rights
09     Transfer of Intellectual Property Rights Upon Termination of the 
Contract for Default
10     Products Created Using the Foreground Information


4006   01     (2008-05-12)  Interpretation

1.     In the Contract, unless the context otherwise requires:

       "Background Information" means all Intellectual Property that is not 
       Foreground Information that is incorporated into the Work or 
       necessary for the performance of the Work and that is proprietary to 
       or the confidential information of the Contractor, its 
       subcontractors or any other third party;

       "Firmware" means computer programs that are stored in integrated 
       circuits, read-only memory or other similar devices within the 
       hardware or other equipment;

       "Foreground Information" means all Intellectual Property first 
       conceived, developed, produced or reduced to practice as part of the 
       Work under the Contract;

       "General Conditions" means the general conditions that form part of 
       the Contract;

       "Intellectual Property" means any information or knowledge of an 
       industrial, scientific, technical, commercial, literary, dramatic, 
       artistic or otherwise creative nature relating to the Work, whether 
       oral or recorded in any form or medium and whether or not subject to 
       copyright; this includes but is not limited to any inventions, 
       designs, methods, processes, techniques, know-how, show-how, models, 
       prototypes, patterns, samples, schematics, experimental or test data, 
       reports, drawings, plans, specifications, photographs, manuals and 
       any other documents, Software, and Firmware;

       "Intellectual Property Right" means any intellectual property right 
       recognized by law, including any intellectual property right 
       protected by legislation such as patents, copyright, industrial 
       design, integrated circuit topography, and plant breeders' rights, 
       or subject to protection under the law as trade secrets and 
       confidential information. 

       "Software" means any computer program whether in source or object 
       code (including Firmware), any computer program documentation 
       recorded in any form or upon any medium, and any computer database, 
       including any modification.

2.     Canada's primary objective in entering into the Contract is to 
       receive the deliverables contracted for, to be able to use those 
       deliverables, and any Intellectual Property arising by virtue of the 
       Contract for Canada's activities, including future contracts, 
       procurements and to protect or advance the broader public interest.  
       These supplemental general conditions do not affect any existing 
       Intellectual Property Rights in any information belonging to Canada, 
       the Contractor or a third party.

3.     Words and expressions defined in the General Conditions and used in 
       these supplemental general conditions have the meanings given to 
       them in the General Conditions. In the event of any inconsistency 
       between the General Conditions and these supplemental general 
       conditions, the applicable provisions of these supplemental general 
       conditions will prevail.  If the General Conditions include a 
       section on "Copyright", they are amended by deleting the section in 
       its entirety.

4.     If supplemental general conditions 4001, 4003 and 4004 are also 
       incorporated in the Contract, the provisions of those supplemental 
       general conditions concerning the ownership of Intellectual Property 
       will prevail in relation to the subject matter of those supplemental 
       general conditions.

5.     References in these supplemental general conditions to the 
       Contractor owning the Foreground Information or any rights in it 
       refer to the Contractor, its subcontractors, its suppliers, its 
       agents, its representatives or any of their employees owning such 
       information or rights, as applicable.

4006   02     (2008-05-12)  Records and disclosure of Foreground 
Information

1.     During and after the performance of the Contract, the Contractor 
       must keep detailed records of the Foreground Information, including 
       details of its creation, ownership and about any sale or transfer of 
       any right in the Foreground Information.  The Contractor must report 
       and fully disclose to Canada all Foreground Information as required 
       by the Contract.  If the Contract does not specifically state when 
       and how the Contractor must do so, the Contractor must provide this 
       information when requested by the Contracting Authority or a 
       representative of the department or agency for which the Contract is 
       performed, whether before or after the completion of the Contract.

2.     Before and after final payment to the Contractor, the Contractor 
       must provide Canada with access to all records and supporting data 
       that Canada considers pertinent to the identification of Foreground 
       Information.

3.     For any Intellectual Property that was developed or created in 
       relation to the Work, Canada will be entitled to assume that it was 
       developed or created by Canada, if the Contractor's records do not 
       list that Intellectual Property or do not indicate that it was 
       created by the Contractor, or by someone on behalf of the Contractor, 
       other than Canada.

4006   03     (2008-05-12)  Ownership of Intellectual Property Rights in 
                            Foreground Information

1.     All Intellectual Property Rights in the Foreground Information 
       belong to the Contractor as soon as they come into existence.

2.     Despite the Contractor's ownership of all the Intellectual Property 
       Rights in the Foreground Information, Canada has unrestricted 
       ownership rights in any prototype, model, custom or customized 
       system or equipment that is a deliverable under the Contract, 
       including manuals and other operating and maintenance documents. 
       This includes the right to make them available for public use, 
       whether for a fee or otherwise, sell them or otherwise transfer 
       ownership in them.

3.     Any personal information, as defined in the Privacy Act, R.S., 1985, 
       c. P-21, collected by the Contractor in the execution of the Work 
       under the Contract becomes the property of Canada immediately upon 
       collection and must be used only for the performance of the Work.  
       The Contractor has no right in any such personal information.

4.     If the Work under the Contract involves the preparation of a 
       database or other compilation using information or data supplied by 
       Canada and any personal information referred to above, the 
       Intellectual Property Rights in the database or compilation 
       containing such information will belong to Canada.  The Contractor's 
       Intellectual Property Rights in the Foreground Information are 
       restricted to those capable of being exploited without the use of 
       the information or data supplied by Canada and the personal 
       information.

5.     The Contractor must maintain the confidentiality of the information 
       or data supplied by Canada and the personal information as required 
       in the General Conditions.  The Contractor must return all the 
       information belonging to Canada on request or on completion or 
       termination of the Contract.  This includes returning all hard 
       copies and electronic copies as well as any paper or electronic 
       record that contains any part of the information or information 
       derived from it.

4006   04     (2008-05-12)  Licenses to Intellectual Property Rights in 
                            Foreground and Background Information

1.     As Canada has contributed to the cost of developing the Foreground 
       Information, the Contractor grants to Canada a license to exercise 
       all Intellectual Property Rights in the Foreground Information for 
       Canada's activities.  Subject to any exception described in the 
       Contract, this license allows Canada to do anything that it would be 
       able to do if it were the owner of the Foreground Information, other 
       than exploit it commercially and transfer or assign ownership of it. 
       The Contractor also grants to Canada a license to use the Background 
       Information to the extent that it is reasonably necessary for Canada 
       to exercise fully all its rights in the deliverables and in the 
       Foreground Information.

2.     These licenses are non-exclusive, perpetual, irrevocable, worldwide, 
       fully-paid and royalty-free. Neither license can be restricted in 
       any way by the Contractor providing any form of notice to the 
       contrary, including the wording on any shrink-wrap or click-wrap 
       license or any other kind of packaging, attached to any deliverable. 

3.     For greater certainty, Canada's licenses include, but are not 
limited to: 

       (a)    the right to disclose the Foreground and Background 
              Information to third parties bidding on or negotiating 
              contracts with Canada and to sublicense or otherwise 
              authorize the use of that information by any contractor 
              engaged by Canada solely for the purpose of carrying out such 
              contracts.  Canada will require these third parties and 
              contractors not to use or disclose that information except as 
              may be necessary to bid on, negotiate or carry out those 
              contracts; 

       (b)    the right to disclose the Foreground and Background 
              Information to other governments for information purposes; 

       (c)    the right to reproduce, modify, improve, develop or translate 
              the Foreground and Background Information or have it done by 
              a person hired by Canada.  Canada, or a person designated by 
              Canada, will own the Intellectual Property Rights associated 
              with the reproduction, modification, improvement, development 
              or translation;

       (d)    without restricting the scope of any license or other right 
              in the Background Information that Canada may otherwise hold, 
              the right, in relation to any custom-designed or 
              custom-manufactured part of the Work, to exercise such of the 
              Intellectual Property Rights in the Background Information as 
              may be required for the following purposes:

              (i)    for the use, operation, maintenance, repair or 
                     overhaul of the custom-designed or custom-manufactured 
                     parts of the Work;

              (ii)   in the manufacturing of spare parts for maintenance, 
                     repair or overhaul of any custom-designed or 
                     custom-manufactured part of the Work by Canada, if 
                     those parts are not available on reasonable commercial 
                     terms to enable timely maintenance, repair or overhaul;

       (e)    for Software that is custom designed for Canada, the right to 
              use any source code the Contractor must deliver to Canada 
              under the Contract.

4.     The Contractor agrees to make the Background Information, including 
       in the case of Software, the source code promptly available to 
       Canada for any purpose mentioned above.  The license does not apply 
       to any Software that is subject to detailed license conditions that 
       are set out elsewhere in the Contract.  Furthermore, in the case of 
       commercial off-the-shelf software, the Contractor's obligation to 
       make the source code promptly available to Canada applies only to 
       source code that is within the control of or can be obtained by the 
       Contractor or any subcontractor.

4006   05     (2008-05-12)  Contractor's Right to Grant Licenses

The Contractor represents and warrants that it has the right to grant to 
Canada the licenses and any other rights to use the Foreground and 
Background Information.  If the Intellectual Property Rights in any 
Foreground or Background Information are or will be owned by a 
subcontractor or any other third party, the Contractor must have or obtain 
promptly a license from that subcontractor or third party that permits 
compliance with section 4 or arrange, without delay, for the subcontractor 
or third party to grant promptly any required license directly to Canada.

4006   06     (2008-05-12)  Waiver of Moral Rights

If requested by Canada, during and after the Contract, the Contractor must 
provide a written permanent waiver of moral rights, as defined in the 
Copyright Act, R.S., 1985, c. C-42, from every author that contributes to 
any Foreground Information subject to copyright protection that is a 
deliverable to Canada under the Contract.  If the Contractor is an author 
of the Foreground Information, the Contractor permanently waives the 
Contractor's moral rights in that Foreground Information.

4006   07     (2008-05-12)  License to Intellectual Property Rights to 
Canada's Information

1.     Any information supplied by Canada to the Contractor for the 
       performance of the Work remains the property of Canada.  The 
       Contractor must use Canada's Information only to perform the 
       Contract.

2.     If the Contractor wants to use any information owned by Canada for 
       the commercial exploitation or further development of the Foreground 
       Information, the Contractor must obtain a license from the 
       department or agency for which the Contract is performed.  In its 
       request for a license to that department or agency, the Contractor 
       must explain why the license is required and how the Contractor 
       intends to use the information.  If the department or agency agrees 
       to grant a license, conditions will be negotiated between the 
       Contractor and that department or agency and may include the payment 
       of a compensation to Canada.

4006   08     (2008-05-12)  Transfer or License of Contractor's Rights

1.     During the Contract, the Contractor must not sell, transfer, assign 
       or license the Foreground Information without first obtaining the 
       Contracting Authority's written permission.

2.     After the Contract, if the Contractor transfer ownership in the 
       Foreground Information, the Contractor is not required to obtain 
       Canada's permission, but must notify the department or agency for 
       whom the Contract is performed in writing of the transfer by 
       referring to the serial number of the Contract and its date and by 
       providing details about the transferee, including the conditions of 
       the transfer.  The Contractor must ensure that the transfer requires 
       the transferee to notify the Canada of any future transfer.  Any 
       transfer must be subject to all Canada's rights to use the 
       Foreground Information.

3.     After the Contract, if the Contractor grants a license or any other 
       right (other than a transfer of ownership) to a third party to use 
       the Foreground Information, the Contractor is not required to notify 
       Canada, but the license or right granted must not affect Canada's 
       rights in any way.

4.     If the Contractor at any time transfers ownership of or grants 
       rights in the Foreground Information that interfere in any way with 
       Canada's rights to use the Foreground Information, the Contractor 
       must, if requested by Canada, immediately take all steps necessary 
       to restore Canada's rights.  If the Contractor is not successful in 
       doing so, within the time reasonably required by Canada, the 
       Contractor must immediately reimburse Canada for all costs Canada 
       incurs to do so itself.

4006   09     (2008-05-12)  Transfer of Intellectual Property Rights upon 
                            Termination of the Contract for Default

1.     If Canada terminates the Contract in whole or in part for default, 
       Canada may, by giving notice to the Contractor, require the 
       Contractor to transfer to Canada all the Intellectual Property 
       Rights in the Foreground Information, including the rights owned by 
       subcontractors.  In the case of Intellectual Property Rights in the 
       Foreground Information that have been sold or assigned to a third 
       party, the Contractor must pay to Canada on demand, at Canada's 
       discretion, the fair market value of the Intellectual Property 
       Rights in the Foreground Information or an amount equal to the 
       payment received by the Contractor from the sale or assignment of 
       the Intellectual Property Rights in the Foreground Information.

2.     In the event of the issuance of a notice under subsection 1, the 
       Contractor must, at its own expense and without delay, execute such 
       documents relating to ownership of the Intellectual Property Rights 
       as Canada may require.  The Contractor must, at Canada's expense, 
       provide all reasonable assistance in the preparation of applications 
       and in the prosecution of any applications for registration of any 
       Intellectual Property Rights in any jurisdiction, including the 
       assistance of the inventor in the case of an invention.

4006   10     (2008-05-12)   Products created using the Foreground 
Information

If the Contractor uses the Foreground Information to develop any new 
product or any improvement in any existing product, the Contractor agrees 
that, if Canada wishes to purchase such new or improved product, the 
Contractor must sell them to Canada at a discount off the lowest price for 
which it has sold those products to other customers, to recognize Canada's 
financial contribution to the development of those products.