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Things to know

The Copyright Act provides that where any work is, or has been, prepared or published by or under the direction or control of the Crown or any government department, the copyright in the work shall belong to the Crown (subject to any agreement with the author).

The Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts (the Policy) sets out the Crown’s policy framework applicable to the ownership and licensing of IP created in connection with procurement contracts. By default, the contractor is to own the Foreground IP arising under government procurement contracts, unless the government applies an exception to the general rule.

Even when the default position set out in the Policy is maintained, the SACC Manual clauses that address IP ownership create challenges and risks for suppliers. For example, pursuant to Supplemental General Conditions 4006 (Contractor to Own Intellectual Property Rights in Foreground Information), a supplier could lose ownership to its Foreground Information if the contract is terminated by the government for default. As well, the government receives a perpetual, royalty-free licence to the Background Information (which includes IP of third parties) to the extent that it is reasonably necessary to exercise fully all its rights in the deliverables and in the Foreground Information.

Typically, government RFPs require the bidder to directly license (or sublicense) all deliverables, including if the deliverables originate with a third-party manufacturer or publisher of off-the-shelf products.

Things to do

  • Ensure that intellectual property ownership is expressly addressed in government contracts.
  • Ensure that you obtain the right to sublicense any third-party software, technology or other intellectual property that you supply to the government.
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