Copyright

Copyright is the legal protection associated with original works, including written, artistic, technical and software materials. In procurement, it is one category of intellectual property rights (IPR). Those rights govern who may own, use, reproduce, modify, publish, license or transfer the materials a supplier brings to a contract or produces under it.

Buyers settle copyright through the solicitation and the contract. The documents state whether the supplier keeps its material, whether the buyer owns what is created, and what licences each side receives. Canadian federal buyers and NATO bodies both follow this approach, and their wording differs in ways that matter to a bidder.

Background and foreground IPR under NATO procurement policy

NATO treats copyright as part of IPR. Its procurement policy requires procurement authorities to define the relevant IPR arrangements, such as access, use, ownership and licensing, in solicitation documents and contracts. This applies where a procurement involves the development, licensing or transfer of IPR.

The policy separates two kinds of material. Background IPR is pre-existing material brought to the contract. Foreground IPR is material created through contract performance. Relevant contractor background IPR should be identified upfront and normally remains owned by the contractor. Procurement authorities should obtain licences where needed to secure access to and use of it. Where a contract produces strategically important foreground IPR, NATO may seek ownership or broad rights.

Copyright terms in NATO general terms and bidding specifications

NATO's general terms and conditions state that pre-existing IPR remains the property of the party that owns it. They also grant the supplier a royalty-free, non-exclusive, non-transferable licence to use NATO background IPR as required to perform the contract.

Standard bidding and contract specifications can go further on copyright. The NATO Defense College specifications provide that rights, including copyright, in specified results of work undertaken for NATO may vest in and become the sole and exclusive property of NATO. Those results include reports, drawings, software, databases, documentation, designs and training materials. The provision is subject to any disclosed pre-existing third-party or supplier rights.

How Canadian federal contracts allocate copyright

Public Services and Procurement Canada (PSPC) addresses ownership of intellectual property through its Standard Acquisition Clauses and Conditions. Clause K3410C, listed in the Standard Acquisition Clauses and Conditions Manual, provides that Canada owns the IPR in Foreground Information. The contractor has no rights in it except those Canada grants in writing.

Solicitations can state the outcome directly. A PSPC request for proposals states that Canada determined IPR arising from the work would belong to Canada under the Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts.

The same solicitation contains an infringement and royalties provision. The contractor must represent and warrant that, to its knowledge, neither the contractor nor Canada will infringe third-party IPR in performing or using the work. It must also warrant that Canada will not owe related royalties.

What copyright means for a supplier bidding on Canadian public contracts

Copyright terms decide what a supplier keeps after delivery, so read them before pricing. Each buyer sets its own position, and a bidder should confirm it in the solicitation.

• Identify all background copyright and other IPR that you or third parties bring to the work, before award or as the solicitation requires.
• Read the ownership and licensing provisions closely. The buyer may require assignment of copyright, ownership of foreground information, a broad licence or only limited usage rights.
• Confirm you have permission to use any third-party copyrighted material, and disclose restrictions, licence conditions and possible royalties.
• Avoid incorporating material that would stop the buyer from exercising the rights promised in the contract, such as rights to modify, maintain, publish, share or reuse deliverables.
• Comply with the warranty, indemnity and royalty provisions on infringement of third-party IPR.