CHAPTER III

Foreground arising from work carried out under indirect actions other than those referred to in paragraph 3 shall be the property of the participant carrying out the work generating that foreground. If employees or other personnel working for a participant are entitled to claim rights to foreground, the participant shall ensure that it is possible to exercise those rights in a manner compatible with its obligations under the grant agreement. Foreground shall be the property of the Community in the following cases: coordination and support actions consisting in a purchase of goods or services subject to the rules on public procurement set out in the Financial Regulation; coordination and support actions relating to independent experts. Where several participants have jointly carried out work generating foreground and where their respective share of the work cannot be ascertained, they shall have joint ownership of such foreground. They shall establish an agreement regarding the allocation and terms of exercise of that joint ownership in accordance with the terms of the grant agreement. Where no joint ownership agreement has yet been concluded, each of the joint owners shall be entitled to grant non-exclusive licenses to third parties, without any right to sub-licence, subject to the following conditions: prior notice must be given to the other joint owners; fair and reasonable compensation must be provided to the other joint owners. Upon request, the Commission shall give guidance on possible matters to be included in the joint ownership agreement. In the case of actions for the benefit of specific groups, Article 39(1) and Article 40(1) shall not apply. In such cases, foreground shall be jointly owned by the participants which are members of the specific group benefiting from the action, unless otherwise agreed by those participants. Where the owners of the foreground are not members of that group, they shall ensure that the group is provided with all the rights to that foreground required for the purposes of using and disseminating it in accordance with the technical annex to the grant agreement. The owner of the foreground may transfer it to any legal entity, subject to paragraphs 2 to 5 and Article 43. Where a participant transfers ownership of foreground, it shall pass on its obligations regarding that foreground to the assignee, including the obligation to pass them on to any subsequent assignee, in accordance with the grant agreement. Subject to its obligations concerning confidentiality, where the participant is required to pass on access rights, it shall give prior notice to the other participants in the same action, together with sufficient information concerning the new owner of the foreground to permit them to exercise their access rights under the grant agreement. However, the other participants may, by written agreement, waive their right to individual prior notice in the case of transfers of ownership from one participant to a specifically identified third party. Following notification in accordance with the first subparagraph of paragraph 3, any other participant may object to any transfer of ownership on the ground that it would adversely affect their access rights. Where any of the other participants demonstrate that their rights would be adversely affected, the intended transfer shall not take place until agreement has been reached between the participants concerned. Where appropriate, the grant agreement may provide that the Commission is to be notified in advance of any intended transfer of ownership or any intended grant of an exclusive licence to a third party which is established in a third country not associated to the Seventh Framework Programme. The Commission may object to the transfer of ownership of foreground, or to the granting of an exclusive licence regarding foreground, to third parties established in a third country not associated to the Seventh Framework Programme, if it considers that this is not in accordance with the interests of developing the competitiveness of the European economy or is inconsistent with ethical principles or security considerations. In such cases, the transfer of ownership or grant of exclusive licence shall not take place unless the Commission is satisfied that appropriate safeguards will be put in place. Where foreground is capable of industrial or commercial application, its owner shall provide for its adequate and effective protection, having due regard to its legitimate interests and the legitimate interests, particularly the commercial interests, of the other participants in the indirect action concerned. Where a participant who is not the owner of the foreground invokes its legitimate interest, it must, in any given instance, show that it would suffer disproportionately great harm. Where the foreground is capable of industrial or commercial application and its owner does not protect it, and does not transfer it to another participant, an affiliated entity established in a Member State or associated country or any other third party established in a Member State or associated country along with the associated obligations in accordance with Article 42, no dissemination activities may take place before the Commission has been informed. In such cases, the Commission may, with the consent of the participant concerned, assume ownership of that foreground and adopt measures for its adequate and effective protection. The participant concerned may refuse consent only if it can demonstrate that its legitimate interests would suffer disproportionately great harm. All publications, patent applications filed by or on behalf of a participant, or any other dissemination relating to foreground, shall include a statement, which may include visual means, that the foreground concerned was generated with the assistance of financial support from the Community. The terms of that statement shall be established in the grant agreement. The participants shall use the foreground which they own, or ensure that it is used. Each participant shall ensure that the foreground of which it has ownership is disseminated as swiftly as possible. If it fails to do so the Commission may disseminate that foreground. The grant agreement may set out time-limits in this respect. Dissemination activities shall be compatible with the protection of intellectual property rights, confidentiality obligations, and the legitimate interests of the owner of the foreground. Prior notice of any dissemination activity shall be given to the other participants concerned. Following notification, any of those participants may object if it considers that its legitimate interests in relation to its foreground or background could suffer disproportionately great harm. In such cases, the dissemination activity may not take place unless appropriate steps are taken to safeguard these legitimate interests. Participants may define the background needed for the purposes of the indirect action in a written agreement and, where appropriate, may exclude specific background. All requests for access rights shall be made in writing. Unless otherwise agreed by the owner of the foreground or background, access rights shall confer no entitlement to grant sub-licences. Exclusive licences for foreground or background may be granted, subject to written confirmation by all the other participants that they waive their access rights thereto. Without prejudice to paragraph 3, any agreement providing access rights to foreground or background to participants or third parties shall be such as to ensure that potential access rights for other participants are maintained. Without prejudice to Articles 49 and 50 and the grant agreement, participants in the same action shall inform each other as soon as possible of any limitation to the granting of access rights to background, or of any other restriction which might substantially affect the granting of access rights. The termination of its participation in an indirect action shall in no way affect the obligation of that participant to grant access rights to the remaining participants in the same action under the terms and conditions established by the grant agreement. Access rights to foreground shall be granted to the other participants in the same indirect action, if it is needed to enable those participants to carry out their own work under that indirect action. Such access rights shall be granted on a royalty-free basis. Access rights to background shall be granted to the other participants in the same indirect action, if it is needed to enable those participants to carry out their own work under that indirect action provided that the participant concerned is entitled to grant them. Such access rights shall be granted on a royalty-free basis, unless otherwise agreed by all participants before their accession to the grant agreement. However, RTD performers shall grant access rights to background on a royalty-free basis. Participants in the same indirect action shall enjoy access rights to foreground, if it is needed to use their own foreground. Subject to agreement, such access rights shall be granted either under fair and reasonable conditions or be royalty-free. Participants in the same indirect action shall enjoy access rights to background, if it is needed to use their own foreground provided that the participant concerned is entitled to grant them. Subject to agreement, such access rights shall be granted either under fair and reasonable conditions or be royalty-free. An affiliated entity established in a Member State or associated country shall also have access rights, referred to in paragraphs 1 and 2, to foreground or background under the same conditions as the participant to which it is affiliated, unless otherwise provided for in the grant agreement or consortium agreement. A request for access rights under paragraphs 1, 2 and 3 may be made up to one year after either of the following events: the end of the indirect action; termination of participation by the owner of the background or foreground concerned. However, the participants concerned may agree on a different time-limit. Subject to the agreement of all the owners concerned, access rights to foreground shall be granted to a RTD performer, on fair and reasonable conditions to be agreed, for the purposes of pursuing further research activities. RTD performers shall grant access on a royalty-free basis, or on fair and reasonable conditions to be agreed prior to the signing of the grant agreement, to background needed to use the foreground generated in the indirect action. Participants in the same ‘frontier’ research action shall enjoy royalty-free access rights to foreground and background for implementation or for the purposes of pursuing further research activities. Access rights for use for purposes other than those of pursuing further research activities shall be royalty free unless otherwise provided in the grant agreement. Where the specific group benefiting from the action is represented by a legal entity that participates in the action in their place, that legal entity may grant a sub-licence, in respect of any access right granted to it, to those of its members which are established in a Member State or an associated country.

← art_38__para_7__text_1 · All articles · SECTION 1 →

Source: EUR-Lex (Cellar) · retrieved 2026-11-07 · Text as adopted (Official Journal); later amendments are not incorporated in this text.