Foreground Information

When a contractor develops something new while working on a government contract—whether that's software code, a technical process, or a novel invention—that's foreground information. It's the intellectual property created directly through the work you've paid them to do. Understanding who owns it and how Canada can use it matters because poorly structured IP clauses can leave departments without access to the very solutions they funded.

How It Works

According to Canada's standard supplemental conditions, foreground information includes "any Invention first conceived, developed or reduced to practice as part of the Work under the Contract and all other Technical Information conceived, developed or produced as part of the Work." This definition, established in the 2015-02-16 supplemental conditions, draws a clear boundary around what emerges from the contract itself.

Here's the thing: ownership doesn't automatically go to Canada just because you're paying for the work. The default approach under Treasury Board's IP provisioning framework actually vests ownership with the contractor. But Canada receives a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license to use that foreground information for government activities—excluding commercial exploitation. The contractor must promptly report and fully disclose all foreground information to the Minister, including detailed records of how it was created and who owns what.

Departments do have options when they need different arrangements. If you determine that Canada should own the foreground IP outright—say, for sensitive defence work or when the solution has no commercial market—you can use Supplemental Condition 003 instead. This requires including appropriate licensing terms in your contract and typically needs alignment with Treasury Board policy exceptions. The IP provisioning guidelines make clear that contractors retain ownership of background information—the pre-existing knowledge they bring to the table—while foreground information gets handled through these explicit contractual mechanisms.

Key Considerations

• Disclosure obligations run both ways. Contractors must report foreground information promptly, but you need systems to actually receive, track, and manage those disclosures. Many departments stumble here simply because nobody's assigned responsibility for monitoring what IP is being created.

• Physical deliverables follow different rules. Even when the contractor owns the IP rights, Canada gets unrestricted ownership of prototypes, models, or other tangible deliverables that incorporate foreground information. You own the thing itself, just not necessarily the underlying intellectual property.

• Commercial rights create complexity. The standard license excludes commercial exploitation—Canada can't turn around and sell or license the contractor's foreground information to third parties. If you need those rights for a legitimate policy reason, structure that into your RFP and expect it to affect pricing. Sometimes significantly.

• Treasury Board approval applies for Crown ownership. Deviating from the contractor-ownership model requires following the Policy on Intellectual Property Provisioning, including Appendix A requirements. You can't just insert the "Canada owns everything" clause without proper justification.

Related Terms

Intellectual Property Rights, Background Information, Technical Information

Sources

• Intellectual Property: IP Provisioning in Contracts - Foreground and Background Information (Canada.ca)

• Implementation Guide on Intellectual Property Provisioning (2023) (ISED)

• Supplemental Conditions - Canada Intellectual Property Rights in Foreground Information, Copyright (003) (Canada.ca)

In practice, get your IP provisions right at the RFP stage. Trying to negotiate ownership after contract award when you've already discovered valuable foreground information creates exactly the disputes these standard clauses were designed to prevent.