Annexes to COM(2012)27 - RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL on the approval of an Agreement for cooperation in the peaceful uses of nuclear energy between Euratom (Euratom) and the Government of South Africa

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dossier COM(2012)27 - RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL on the approval of an Agreement for cooperation in the peaceful uses of ...
document COM(2012)27 EN
date February  2, 2012
Agreement.

For the European Atomic Energy Community                For the Republic of South Africa

ANNEX A

Guiding principles on the allocation of intellectual property rights resulting from joint research activities under the Agreement for cooperation in the peaceful uses of nuclear energy

I. OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS

1. This Annex shall apply to cooperative activities under this Agreement except as otherwise agreed by the Parties. The participants shall jointly develop technology management plans (TMPs) in respect of the ownership and use, including publication, of information and intellectual property, to be created in the course of cooperative activities. The TMPs shall be approved by the Parties before the conclusion of any specific Research and Development cooperation contracts to which they refer.

The TMPs shall be developed taking into account the aims of the cooperative activities, the relative contributions of the participants, peculiarities of licensing by territory or for a specific field of use, requirements imposed by laws applicable and other factors deemed appropriate by the participants. The rights and obligations concerning the research generated by visiting researchers under this Agreement in respect of RIA shall also be addressed in the joint TMPs.

2. RIA created in the course of cooperative activities and not addressed in the TMP shall be allocated, with the approval of the Parties, according to the principles set out in the TMP. In case of disagreement, such RIA shall be owned jointly by all the participants involved in the joint research from which the RIA results. Each participant to whom this provision applies shall have the right to use such RIA for his own commercial exploitation with no geographical limitation.

3. Each Party shall ensure that the other Party and its participants shall have the rights to RIA allocated to them in accordance with these principles.

4. While maintaining the conditions of competition in areas affected by this Agreement each Party shall endeavor to ensure that rights acquired pursuant to this Agreement and arrangements made under it are exercised in such a way as to encourage in particular:

(i) the dissemination and use of information created, disclosed legally, or otherwise legally made available, under the Agreement;

(ii) the adoption and implementation of international technical standards.

II. COPYRIGHT WORKS

Under this Agreement, copyright belonging to the Parties or to their participants shall be accorded treatment consistent with the Berne Convention for the protection of literary and artistic work (Paris Act 1971).

III. SCIENTIFIC LITERARY WORKS

Without prejudice to section IV of this Annex, unless otherwise agreed in the TMP, publication of results of research shall be made jointly by the Parties or participants to those cooperative activities. Subject to the foregoing general rule, the following procedures shall apply:

(a) in the case of publication by a Party or its other participants, of scientific and technical journals, articles, reports, books, including video and software, of the results arising from cooperative activities. pursuant to this Agreement, the other Party or its other participants shall be entitled to a worldwide, non-exclusive, irrevocable, royalty-free license to translate, reproduce, adapt, transmit and publicly distribute such works;

(b) the Parties shall ensure that literary works of a scientific character arising from cooperative activities. Pursuant to this Agreement and published by independent publishers shall be disseminated as widely as possible;

(c) all copies of a copyright work to be publicly distributed and prepared under the provisions of this Agreement shall indicate the names or pseudonyms of the author(s) of the work unless an author or authors expressly declines or decline to be named. The copies shall also bear a clearly visible acknowledgment of the cooperative support of the Parties and/or their representatives and/or organizations.

IV. UNDISCLOSED INFORMATION

1. Documentary undisclosed information

(a) Each Party or its participants, as appropriate, shall identify at the earliest possible moment and preferably in the TMP, the information that it wishes to remain undisclosed in relation to this Agreement, taking account, inter alia, of the following criteria:

- secrecy of the information in the sense that the information is not, as a body or in the precise configuration or assembly of its components, generally known among or readily accessible by lawful means to experts in the field,

- the actual or potential commercial value of the information by virtue of its secrecy,

- previous protection of the information in the sense that it has been subject to steps that were reasonable under the circumstances by the person lawfully in control, to maintain its secrecy.

The Parties and their participants may, in certain cases, agree, that, unless otherwise indicated, parts of or all the information provided, exchanged or created in the course of cooperative activities pursuant to the Agreement shall not be disclosed.

(b) each Party shall ensure that undisclosed information under this Agreement and its ensuing privileged nature is readily recognizable as such by the other Party, for example by means of an appropriate marking or restrictive legend. This also applies to any reproduction of the said information, in whole or in part;

Party receiving undisclosed information pursuant to this Agreement shall respect the privileged nature thereof. These limitations shall automatically terminate when this information is disclosed by the owner without restriction to experts in the field;

(c) undisclosed information communicated under this Agreement may be disseminated by the receiving Party to persons within or employed by the receiving Party, and other concerned departments or agencies in the receiving Party authorized for the specific purposes of the cooperative activities. under way, provided that any undisclosed information so disseminated shall be pursuant to a specific agreement on confidentiality and shall be readily recognizable as such, as set out above;

(d) with the prior written consent of the Party providing undisclosed information under this Agreement, the receiving Party may disseminate such undisclosed information more widely than otherwise permitted in paragraph (c). The Parties shall cooperate in developing procedures for requesting and obtaining prior written consent for such wider dissemination, and each Party will grant such approval to the extent permitted by its domestic policies, regulations and laws.

2. Non-documentary undisclosed information

Non-documentary undisclosed or other confidential or privileged information provided in seminars and other meetings arranged under this Agreement, or information arising from the attachment of staff, use of facilities, or joint projects, shall be treated by the Parties or their participants according to the principles specified for documentary information in this Annex, provided, however, that the recipient of such undisclosed or other confidential or privileged information has been made aware of the confidential character of the information communicated at the time such communication is made.

3. Control

Each Party shall endeavor to ensure that undisclosed information received by it under this Agreement shall be controlled as provided therein. If one of the Parties becomes aware that it will be, or may reasonably be, expected to become unable to meet the non-dissemination provisions of paragraphs 1 and 2, it shall immediately inform the other Party. The Parties shall thereafter consult to define an appropriate course of action.

V. Indicative features of a technology management plan (TMP)

The TMP is a specific agreement to be concluded between the participants, about the implementation of cooperative activities and the respective rights and obligations of the participants. With respect to RIA, the TMP will normally address, inter alia: ownership, protection, user rights for R & D purposes, exploitation and dissemination, including arrangements for joint publication, the rights and obligations of visiting researchers and dispute settlement procedures. The TMP may also address foreground and background information, licensing and deliverables.

[1]               INFCIRC/540.