Regarding foreground, there is not much difference with FP6 (perhaps now the definition is expressed more clearly1). However, the meaning of background changes.

Background is defined as "information which is held by participants prior to their accession to the grant agreement, as well as copyrights or other intellectual property rights pertaining to such information, the application for which has been filed before their accession to the grant agreement, and which is needed for carrying out the indirect action or for using the results of the indirect action".

Under FP7, then, only prior information and IPR (granted/applied for) are considered background (not information developed in parallel to the project, so-called "side-ground"). This should minimise participants' concerns as regards access rights obligations.

In order to make it easier for contractors to regulate their joint ownership, a default regime has been introduced in case contractors have not agreed on a particular one.

According to this default regime: each of the joint owners shall be entitled to grant non-exclusive licenses to third parties, without any right to sublicense, subject to both prior notice and fair and reasonable compensation to the other joint owner(s).

This default rule serves the self-sustainability of the rules, and adds legal certainty for participants if they want to make use of it. Participants may, of course, agree upon another regime which is preferable to them.

Together with employees, "other personnel" is now mentioned. This implies further clarification of the contractors' obligation to ensure that the rights "any" personnel (employees, scholars, collaborators, etc.) may claim to the results by virtue of national law or agreement will not prejudice the obligations assumed by the grant agreement.

Regulation of the transfer of ownership of results has changed considerably to favour participants' autonomy.

As a matter of principle, the only obligation is to notify participants (not the Commission), who can even waive their right to be notified in advance with respect to transfers towards a specifically identified third party.

Notification of the Commission may be foreseen by the grant agreement, where appropriate.

The Commission's right to object to a transfer/granting of access rights is now grouped under the heading "preservation of European competitiveness and ethical principles". As the heading suggests, the grounds for objection are those of FP6. However, the rule now applies only in relation to a plan for transferring foreground or for granting an exclusive licence to foreground to a third party not established in a country associated to the FP7.

The FP7 rules make it clear that participants may transfer results to other participants if they are not interested in protecting the results themselves. (Under FP6, participants have to inform (offer the results to) the Commission). The new rule makes it clear that transferring the protection obligation/right implies a transfer of ownership. If no participant is interested, the Commission may then take over these duties. In any case, no dissemination activities may take place before informing the Commission of the lack of interest.

The FP6 exhaustive regulation of the publications/objection regime disappears. Now everything is simplified and dealt with in the dissemination provision.

Under FP7, the fact that results have been achieved thanks to EC financial support must be highlighted.

Any publication or any other dissemination activity, patent applications filed and patents issued on the results shall include a statement specifying that the foreground in question was made with assistance of financial support from the European Community.

Publication is now included within the dissemination activity, therefore gaining coherence.

Participants are obliged to notify other participants before any dissemination activity. Objection is possible if they consider that their legitimate interests in relation to their foreground or background could be affected. There is a lot of room for the regulation of procedures in the consortium agreement3.

The question of exclusion of background is dealt with in a simple way, leaving participants to "define the background needed" for the purpose of the project, and "where appropriate, exclude specific background".

Positive lists and similar practices are therefore admitted, marking a significant difference with FP6.

Access rights for execution of the project do not change.

Access rights for use purposes have to be granted either under fair and reasonable conditions or royalty-free (participants may choose).

The period during which access rights for use may be requested is reduced from 2 years to 1, unless the participants agree differently (i.e. shorter or longer period).

RTD Performers are recognised access rights, which are granted upon the agreement of all owners concerned. However, this is just to carry out further research activities (An acknowledgement of possible access rights for exploitation is still missing, but it is open to the agreement of the parties on conditions to be freely negotiated).

In order to clarify the issue of exclusive licensing, this is expressly accepted (both for foreground and background) but is conditional on all participants waiving their access rights to the specific resource and confirming this in writing.

There are two new additions; one on ownership and the other on access rights:

The specific groups benefiting from these actions have the joint ownership of all foreground generated, as in FP6, but under FP7 they may decide otherwise. If the owner of foreground is not a member of the group benefiting from the action, it shall ensure that the group is granted all rights necessary in order to use and disseminate said foreground.

If beneficiaries of these actions are represented by a legal entity, sublicensing is expressly accepted. In such cases, the legal entity shall be entitled to sublicense any access rights granted to it to those of its members established in a Member State or an Associated country.

In this new type of action, dissemination activities may have pre-eminence.

Access rights to foreground and background for project implementation or further research purposes shall always be royalty-free. (No negotiation). Other access rights for use purposes shall be royalty-free unless otherwise provided in the grant agreement.