Foreground Information

Foreground Information is an intellectual property category used in Canadian Crown contracts. It covers any invention first conceived, developed or reduced to practice as part of the work under a contract, together with other technical information conceived, developed or produced as part of that work. The definition appears in Canada.ca contracting guidance on intellectual property.

The term exists to separate what a supplier creates because of a contract from what the supplier already had. Information that existed before the contract is Background Information. Information that comes out of the contracted work is Foreground Information. Which side an item falls on decides who owns it, what must be disclosed and what records the supplier must keep.

What counts as Foreground Information

The definition has two parts: inventions, and other technical information generated by the work. Technical Information is broad. It can include inventions, designs, methods, processes, know-how, models, prototypes, test data, reports, drawings, specifications, manuals and software. The test is timing and origin. If the item was first conceived, developed, produced or reduced to practice as part of the work under the contract, it is Foreground Information, as set out in the Canada.ca intellectual property guidance.

The same split is used in UK government procurement, where Background IP existed before the contract and Foreground IP is generated as part of the contract work, as described in UK guidance on knowledge assets in procurement.

Who owns Foreground Information under Canadian clauses

Canadian contracts follow one of two models. In the first, Canada owns the rights. The Standard Acquisition Clauses and Conditions Manual includes a clause under which intellectual property rights in Foreground Information vest in and remain the property of Canada as soon as they come into existence. Where Canada owns the Foreground Information, the contractor has no rights in it except those Canada grants in writing. See the Standard Acquisition Clauses and Conditions Manual on CanadaBuys.

In the second model, the contractor keeps ownership. The ISED general conditions for service contracts provide that the contractor owns the intellectual property rights in Foreground Information and grants Canada a licence to use those rights for Canada's activities. The terms are in the ISED general conditions for service contracts.

Disclosure and record-keeping duties

Ownership is only part of the obligation. Under the federal clause described in the Canada.ca guidance, the contractor must promptly report and fully disclose Foreground Information that could be inventions. It must disclose other Foreground Information by completion of the work, or by an earlier time the contract requires.

Canada also publishes supplemental conditions on Foreground Information that require contractors to keep detailed records, including details of how the information was created. These are set out in the Canada intellectual property rights supplemental conditions. Depending on the clause, a contractor may also have to provide supporting records and mark copyright material with the required Crown copyright notice.

What it means for a supplier bidding on Canadian public contracts

• Read the intellectual property clause in the solicitation before you price or design the work. It tells you whether Canada owns the Foreground Information or you do.
• Identify your Background Information early and keep dated proof that it existed before the contract.
• Set up a process to log inventions, designs, data and software as they are produced, with who created them and when.
• Plan for disclosure. Potential inventions must be reported promptly, and other Foreground Information by completion of the work or an earlier contractual date.
• Where Canada owns the rights, assume you have none beyond what Canada grants you in writing. Where you own them, expect to give Canada a licence for its activities.