Agreement for scientific and technological cooperation between the European Community and the Government of the United States of America - Intellectual property
22. 10. 98 EN Official Journal of the European Communities L 284/37 for scientific and technological cooperation between the European Community and the Government of the United States of America AGREEMENT THE EUROPEAN COMMUNITY (hereinafter ‘the Community'), of the one part, and THE GOVERNMENT OF THE UNITED STATES OF AMERICA, of the other part, hereinafter referred to as the ‘Parties', CONSIDERING the importance of science and technology for their economic and social development; RECOGNISING that the Community and the Government of the United States of America are pursuing research and technological activities in a number of areas of common interest, and that participation in each other’s research and development activities on a basis of reciprocity will provide mutual benefits; HAVING REGARD to the Declaration on EC-US relations of 23 November 1990 and the New Transatlantic Agenda and the Joint EU-US Action Plan adopted in Madrid on 3 December 1995; DESIRING to establish a formal basis for cooperation in scientific and technological research which will extend and strengthen the conduct of cooperative activities in areas of common interest and encourage the application of the results of such cooperation to their economic and social benefit, HAVE AGREED AS FOLLOWS: Article 1 Purpose (c) ‘Intellectual property' shall have the meaning defined in Article 2 of the Convention establishing the World Intellectual Property Organisation, done at Stock- holm, 14 July 1967; The Parties shall encourage, develop and facilitate co- operative activities in fields of common interest where they are pursuing research and development activities in science and technology. Article 2 Definitions (d) ‘Joint research' means research that is implemented with financial support from one or both Parties and that involves collaboration by participants from both the Community and the United States of America, and is designated as joint research in writing by the Parties or their scientific and technological organ- isations and agencies, or in the case where there is funding by only one Party, by that Party and the participants in that project; For the purposes of this Agreement: (a) ‘Cooperative activity' means any activity which the Parties undertake, or support, pursuant to this Agree- ment, and includes joint research; (e) (b) scientific or technical data, ‘Information' means results or methods of research and development stem- ming from joint research, and any other data relating to cooperative activities; individual ‘Participants' means entity, any including, inter alia, the Parties’ scientific and tech- nological organisations and agencies, private persons, undertakings, research centres, universities, subsidi- aries of European and US entities, or any other form of legal entity involved in cooperative activities. or L 284/38 EN Official Journal of the European Communities 22. 10. 98 Article 3 Principles Article 5 Forms of cooperative activities Cooperative activities shall be conducted on the basis of the following principles: (a) mutual benefit based on an overall balance of ad- vantages; (b) reciprocal opportunities to engage in cooperative activities; (c) equitable and fair treatment; (a) Subject to applicable laws, regulations and policies, the Parties shall foster, to the fullest extent practicable, the involvement of participants in cooperative activ- ities under this Agreement with a view to providing comparable opportunities for participation in their scientific and technological research and development activities. (b) Cooperative activities may take the following forms: (d) timely exchange of cooperative activities. information which may affect 1. coordinated research projects and joint research Article 4 Areas of cooperative activities projects; 2. joint task forces; 3. joint studies; (a) Sectors for cooperative activities are: 4. joint organisation of scientific seminars, confer- ences, symposia and workshops; — environment (including climate research), 5. training of scientists and technical experts; — biomedicine and health (including research on AIDS, infectious diseases and drug abuse), — agriculture, — fisheries science, — engineering research, — non-nuclear energy, — natural resources, — materials sciences and metrology, — information and communication technologies, — telematics, — biotechnology, — marine sciences and technology, — social sciences research, — transportation, 6. exchange or sharing of equipment and materials; 7. visits and exchanges of scientists, engineers or other appropriate personnel; 8. exchanges of scientific and technological informa- tion as well as on practices, laws, regulations and programmes relevant to cooperation under this Agreement. Where appropriate, such cooperative activities shall take place pursuant to implementing arrangements concluded between the Parties’ executive agents, or their scientific and technological organisations and agencies. These arrangements may describe the nature and the duration of cooperation for a specific area or purpose, treatment of intellectual property as provided for in the Annex, funding, allocation of costs, and other relevant matters. Article 6 — science and technology policy, management, training and mobility of scientists. (b) The Parties may modify this list upon recommenda- tion by the Joint Consultative Group mentioned in Article 6, in accordance with procedures in force for each Party. (c) The Parties may jointly pursue cooperative activities with third parties. Coordination and facilitation of cooperative activ- ities (a) The coordination and facilitation of cooperative activ- ities under this Agreement shall be accomplished on behalf of the Government of the United States of America by the Department of State and on behalf of the Community by the European Commission, acting as Executive Agents. 22. 10. 98 EN Official Journal of the European Communities L 284/39 (b) The Executive Agents shall establish a Joint Consulta- tive Group (hereinafter referred to as the ‘JCG') for the oversight of scientific and technological cooperation under this Agreement. The JCG shall consist of a limited equal number of official representatives of each Party. (b) Each Party shall bear the costs of discharging its responsibilities under this Agreement, including costs of participation in meetings of the JCG. However, costs, other than those for travel and accommodation, which are directly associated with meetings of the JCG, shall be borne by the host Party. (c) The JCG may hold consultation on general science and technology issues; exchange information; estab- lish task forces and working groups as appropriate; consult experts as appropriate and needed; and other- wise work to increase mutual understanding of the Parties’ activities and programmes related to science and technology. (d) The functions of the JCG shall include: Article 8 Entry of personnel and equipment Each Party shall take all reasonable steps and use its best efforts, within applicable laws and regulations, to facilitate entry to and exit from its territory of persons, material, data and equipment involved in or used in cooperative activities under this Agreement. 1. overseeing and recommending activities under the Agreement; Article 9 2. making recommendations pursuant to Article 4(b); Treatment of intellectual property 3. advising the Parties on ways to enhance co- operation consistent with the principles set out in this Agreement; 4. annually providing a report on the status and ef- fectiveness of cooperation undertaken under this Agreement; 5. reviewing the efficient and effective functioning of the Agreement. (e) The JCG shall meet annually, unless otherwise agreed by the Parties. Meetings should be held alternately in the Community and the United States of America. The JCG shall establish its own rules of procedure, subject to approval by the Parties. (f) Decisions of the JCG 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 upon by those persons selected from each side to jointly chair the meetings. Article 7 Funding and legal considerations (a) Cooperative activities shall be subject to the avail- ability of appropriated funds and to the applicable laws and regulations, policies and programmes of the Community and the United States of America. The allocation and protection of intellectual property rights under this Agreement shall be in accordance with the provisions of the Annex, which forms an integral part of this Agreement. Article 10 Other agreements and transitional provisions (a) The Parties shall endeavour, where appropriate, to bring under the terms of this Agreement new arrange- ments for scientific and technological cooperation between the Community and the Government of the United States of America that fall under the scope of Article 4. (b) This Agreement is without prejudice to rights and obligations under other agreements between the Parties and any agreement or arrangement between either of the Parties and non-participant third parties, including agreements of arrangements between their scientific and technological organisations or agencies and a Member State of the Community. Article 11 Territorial application This Agreement shall apply, on the one hand to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty, and on the other hand to the ter- ritory of the United States of America. This shall not prevent the conduct of cooperative activities on the high seas, outer space, or the territory of third countries, in accordance with international law. L 284/40 EN Official Journal of the European Communities 22. 10. 98 Article 12 Entry into force, termination and dispute settle- ment (a) This Agreement shall enter into force on the date on which the Parties have notified each other in writing that their respective internal procedures necessary for its entry into force have been completed. (b) This Agreement is concluded for an initial period of five years. Subject to review by the Parties in the final year of each successive period, the Agreement may be extended, with possible amendments, thereafter for five years by mutual written additional periods of agreement between the Parties. (c) This Agreement may be terminated at any time by either Party upon six months’ written notice. The expiration or termination of this Agreement shall not affect the validity or duration of any arrangements made under it, or any specific rights and obligations that have accrued in compliance with the Annex. (d) This Agreement may be amended by agreement of the Parties. Amendments shall enter into force on the date on which the Parties have notified each other in writing that their respective internal procedures neces- amending this Agreement have been sary completed. for (e) All questions or disputes related to the interpretation or implementation of this Agreement shall be settled by mutual agreement of the Parties. Article 13 This Agreement is signed in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish, and Swedish languages, each of these texts being equally authentic. Hecho en Washington DC, el cinco de diciembre de mil novecientos noventa y siete. Udfærdiget i Washington DC, den femte december nitten hundrede og syvoghalvfems. Geschehen zu Washington DC am fünften Dezember neunzehnhundertsiebenundneunzig. écime stgm Ouásicjtom DC, stir 5 Dejelbqöou wökia emmiaj sia ememômta eptá. Done at Washington DC on the fifth day of December in the year one thousand nine hundred and ninety-seven. Fait à Washington DC, le cinq décembre mil neuf cent quatre-vingt-dix-sept. Fatto a Washington DC, addì cinque dicembre millenovecentonovantasette. Gedaan te Washington DC, de v¶fde december negentienhonderd zevenennegentig. Feito em Washington DC, em cinco de Dezembro de mil novecentos e noventa e sete. Tehty Washington DC:ssä viidentenä päivänä joulukuuta vuonna tuhatyhdeksänsataayhdeksän- kymmentäseitsemän. Som skedde i Washington DC den femte december nittonhundranittiosju. 22. 10. 98 EN Official Journal of the European Communities L 284/41 Por la Comunidad Europea For Det Europæiske Fællesskab Für die Europäische Gemeinschaft Cia tgm Euqypãjô Joim tgta For the European Community Pour la Communauté européenne Per la Comunità europea Voor de Europese Gemeenschap Pela Comunidade Europeia Euroopan yhteisön puolesta På Europeiska gemenskapens vägnar Por el Gobierno de los Estados Unidos de América For regeringen for Amerikas Forenede Stater Für die Regierung der Vereinigten Staaten von Amerika Cia tgm jubíqmgsg tym Gmylímym Pokitei-m tgr Aleqijôr For the Government of the United States of America Pour le gouvernement des États-Unis d’Amérique Per il governo degli Stati Uniti d’America Voor de regering van de Verenigde Staten van Amerika Pelo Governo dos Estados Unidos da América Amerikan yhdysvaltojen hallituksen puolesta På Amerikas förenta staternas regerings vägnar L 284/42 EN Official Journal of the European Communities 22. 10. 98 For the Government of the United States of America Por el Gobierno de los Estados Unidos de América For regeringen for Amerikas Forenede Stater Für die Regierung der Vereinigten Staaten von Amerika Cia tgm jubíqmgsg tym Gmylímym Pokitei-m tgr Aleqijôr Pour le gouvernement des États-Unis d’Amérique Per il governo degli Stati Uniti d’America Voor de regering van de Verenigde Staten van Amerika Pelo Governo dos Estados Unidos da América Amerikan yhdysvaltojen hallituksen puolesta På Amerikas förenta staternas regerings vägnar For the European Community Por la Comunidad Europea For Det Europæiske Fællesskab Für die Europäische Gemeinschaft Cia tgm Euqypãjô Joim tgta Pour la Communauté européenne Per la Comunità europea Voor de Europese Gemeenschap Pela Comunidade Europeia Euroopan yhteisön puolesta På Europeiska gemenskapens vägnar 22. 10. 98 EN Official Journal of the European Communities L 284/43 ANNEX INTELLECTUAL PROPERTY Pursuant to Article 9 of this Agreement: The Parties shall ensure adequate and effective protection of intellectual property created or furnished under this Agreement and relevant implementing arrangements. The Parties agree to notify one another in a timely fashion of any inventions or copyrighted works arising under this Agreement and to seek protection for such intellectual property in a timely fashion. Rights to such intellectual property shall be allocated as provided in this Annex. I. SCOPE A. This Annex is applicable to all cooperative activities undertaken by the Parties or their participants pursuant to this Agreement, except as otherwise specifically agreed by the Parties. B. For purposes of this Agreement, ‘intellectual property' shall have the meaning found in Article 2 of the Convention Establishing the World Intellectual Property Organisation, done at Stockholm, 14 July 1967. C. This Annex addresses the allocation of rights, interests, and royalties between the Parties or their participants. Each Party shall ensure that the other Party or its participants can obtain the rights to intellectual property allocated in accordance with the Annex. This Annex does not otherwise alter or prejudice the allocation between a Party and its nationals, which shall be determined by that Party’s laws and practices. D. Disputes concerning intellectual property arising under this Agreement should be resolved through discussions between the relevant participants, or, if necessary, the Parties. Upon mutual agreement of the Parties, the participants may submit a dispute to an arbitral tribunal for binding arbitration. Unless the participants agree otherwise in writing, the arbitration rules of Uncitral shall govern. E. Termination or expiration of this Agreement shall not affect rights or obligations under this Annex. II. ALLOCATION OF RIGHTS A. Each Party shall be entitled to a non-exclusive, irrevocable, royalty-free licence in all countries to reproduce, publicly distribute and translate scientific and technical journal articles, non-proprietary scientific reports and books directly arising from cooperation under this Agreement. All publicly distributed copies of a copyrighted work prepared under this provision shall indicate the names of the authors of the work unless an author explicitly declines to be named. Each Party or its participants shall have the right to review a translation prior to public distribution. B. Rights to all forms of intellectual property, other than those rights described in paragraph II(A) above, shall be allocated as follows: 1. Visiting researches, for example, scientists visiting primarily in furtherance of their education, shall receive intellectual property rights under arrangements with their host institutions. In addition, each visiting researcher named as an inventor shall be entitled to treatment as a national of the host country with regard to awards, bonuses, benefits, or any other rewards, in accordance with the policies of the host institution. 2. (a) For intellectual property which is or may be created during joint research, the Parties or their jointly develop a technology management plan. The technology participants management plan shall consider the Parties and their participants, the benefits of licensing by territory or for fields of use, requirements imposed by the Parties’ domestic laws, and other factors deemed appropriate. the relative contributions of shall L 284/44 EN Official Journal of the European Communities 22. 10. 98 (b) If the parties or their participants did not agree to a joint technology management plan in the initial research cooperation agreement and cannot reach an agreement within a reasonable time, not to exceed six months, from the time a Party becomes aware of the creation or likely creation of the intellectual property in question as a result of the joint research, the Parties or their participants shall resolve the matter in accordance with the provisions of paragraph I(D). Pending resolution of the matter, such intellectual property shall be owned jointly by the Parties or their participants, but shall be commercially exploited (including product development) only by mutual agreement. (c) ‘Joint research' means research that is implemented with financial support from one or both Parties and that involves collaboration by participants from both the Community and the United States of America and is designated as joint research in writing by the Parties or their scientific and technological organisations and agencies, or in the case where there is funding by only one Party, by that Party and the participants in that project. (d) In the event that either Party believes that a particular joint research project under this Agreement has led or will lead to the creation or furnishing of a type of intellectual property that it protects but is not protected throughout the territory of the other Party, the Parties shall immediately hold discussions to determine the allocation of the rights to the said intellectual property. The joint activities in question will be suspended during the discussions, unless otherwise agreed by the Parties thereto. If no agreement can be reached within a three-month period from the date of the request for discussions, cooperation on the project in question will be suspended or terminated at the request of either Party. III. PROPRIETARY INFORMATION In the event that information identified in a timely fashion as proprietary is furnished or created under the Agreement, each Party and its participants shall protect such information in accordance with applicable laws, regulations, and administrative practice. Without prior written consent, none of the Parties shall disclose any proprietary information except to employees, government personnel, and prime and subcontractors. Such disclosures shall be for use only within the terms of their permits or licences with the Parties or the scope of work of their contracts with the Parties and in work relating to the subject matter of the information so disseminated. The Parties shall impose, or shall have imposed, through appropriate arrangements technology management plans, etc. , an obligation on all participants receiving such information to keep it confidential. research contracts, grant documents, such as If one of the Parties becomes aware that, under its laws or regulations, it will be, or may reasonably be expected to become unable to meet the non-disclosure provisions, it shall immediately inform the other Party. The Parties shall thereafter consult to define an appropriate course of action. Information may be identified as proprietary if it is secret in the sense that it is not, as a body or in the precise configuration or assembly of its components, generally known or readily accessible by lawful means; has actual or potential commercial value by virtue of its secrecy; has been subject to steps that were reasonable under the circumstances by the person lawfully in control to maintain its secrecy and not already in the possession of the recipient without an obligation concerning its confidentiality