ARCHIVED Canada 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     License to Intellectual Property Rights in Background Information
05     Contractor's Right to Grant License
06     Waiver of Moral Rights


4007   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, regardless of whether it 
       is owned by the Contractor or a 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.     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.

3.     If supplemental general conditions 4001 and 4003 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.

4007   02     (2008-05-12)  Record 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.  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 if requested by the Contracting Authority, 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.

4007   03     (2008-05-12)  Ownership of Intellectual Property Rights in 
                           Foreground Information

1.     All Intellectual Property Rights in the Foreground Information 
       belong to Canada as soon as they come into existence.  The 
       Contractor has no right in or to any such Intellectual Property 
       Rights in the Foreground Information, except any right that may be 
       granted in writing by Canada.

2.     The Contractor must incorporate the copyright symbol and one of the 
       following notices, as appropriate into all Foreground Information 
       that is subject to copyright regardless of the form or medium upon 
       which it is recorded: © Her Majesty the Queen in Right of Canada 
       (year), or © Sa Majesté la Reine du chef du Canada (année).

3.     The Contractor must execute any documents relating to the 
       Intellectual Property Rights in the Foreground Information as Canada 
       may require.  The Contractor must, at Canada's expense, provide 
       Canada 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 on inventions.

4007   04     (2008-05-12)  License to Intellectual Property Rights in 
                           Background Information

1.     The Contractor 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. This license is non-exclusive, perpetual, 
       irrevocable, worldwide, fully-paid and royalty-free.  The license 
       cannot be restricted in any way by the Contractor providing any form 
       of notice to the contrary, including the wording on any 
       shrink-wrapped license attached to any deliverable.

2.     For greater certainty, Canada's license in the Background 
       Information includes, but is not limited to:

       (a)    the right to disclose the 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, 
              negotiate or carry out those contracts;

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

       (c)    the right reproduce, modify, improve, develop or translate 
              the 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 
              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 
              in relation to any custom-designed or custom-manufactured 
              part of the Work, the right to use and disclose to a 
              contractor engaged by Canada the Background Information 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.

3.     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.

4007   05     (2008-05-12)  Contractor's Right to Grant Licence

The Contractor represents and warrants that it has the right to grant to 
Canada the license and any other rights to use the Background Information.  
If the Intellectual Property Rights in any Background Information are owned 
by a subcontractor or any other third party, the Contractor must have 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 the required license directly to Canada.

4007   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.