Crown Copyright and IP Assignment

Crown copyright and IP assignment covers who owns, and who may use, intellectual property created under a Canadian government contract. Crown copyright is copyright owned by the Crown. IP assignment is the transfer of ownership rights in intellectual property from one party, typically the contractor, to the Crown or another contracting party.

Canada's procurement policy separates three outcomes: the contractor owns the IP, the Crown owns the IP, or the contractor keeps ownership and grants the government a licence to use it. The term combines two related concepts rather than naming a single clause, so a supplier's exact obligations depend on the IP option and clause written into the solicitation and the resulting contract.

Foreground IP and background IP

Canadian procurement divides intellectual property into two groups. Foreground IP is IP generated under the contract. Background IP is IP that existed before the contract began. Ownership rules apply differently to each, which is why bid documents ask suppliers to identify what they already hold.

Copyright is only one form of IP. Others include patents, trademarks and trade secrets. The federal policy framework published by Innovation, Science and Economic Development Canada addresses ownership and licensing of all of these when they arise during a Crown procurement contract. See the ISED overview of intellectual property and Crown procurement contracts.

The default position and the exceptions to it

The Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts sets the starting point. Canada's default position is generally that the contractor owns the foreground IP. The Crown can take ownership by invoking an exception listed in the policy's appendix.

Where the Crown intends to own foreground IP, the solicitation and the contract must identify the exception being applied. If the Crown wants ownership for a reason that is not a listed exception, Treasury Board approval is required. The implementation guide for the policy sets out this process.

How CanadaBuys directs buyers to handle copyright

Before issuing a solicitation or awarding a contract, buyers must identify pre-existing IP and the IP they expect the contract to generate. Solicitation documents should then state clearly who owns the IP rights and how Canada may use the IP.

The CanadaBuys planning guidance on intellectual property and copyright also gives norms for PSPC buyers. For non-software copyright in goods with no expected research and development, and in services with no expected research and development, Canada ownership is the norm. For research and development, and for goods involving it, contractor ownership is the norm, subject to the Crown rights or exceptions that apply.

Deliverables where Crown copyright comes up most

The issue is most relevant to contracts for software, research and development, technical data, publications, multimedia, studies, designs and engineering deliverables. It applies to any work capable of copyright or other IP protection.

Treasury Board publishing procedures also refer to Crown copyright directly. They cover contracts for films, CDs, DVDs, videos, television programs and multimedia productions, and require certain of these contracts to be issued by the Communications Procurement Directorate at PSPC. The procedure is published in the Treasury Board publishing policy instruments.

What it means for a supplier bidding on Canadian public contracts

• Read the IP clause and the stated ownership position in every solicitation before pricing the work.
• Expect that you may need to assign foreground IP to Canada, or grant Canada a licence to use IP you own.
• Identify your pre-existing IP and any third-party IP in your bid.
• Obtain the permissions needed to deliver the work, including from third-party rights holders.
• Where the Crown claims ownership, check that the solicitation names the policy exception being used.