Under the Sixth Framework Programme (FP6), research results of a project, as well as the intellectual property rights linked to such results are referred to as "knowledge". Knowledge is, generally speaking, the property of the contractor who has generated it in the course of his project work. If several contractors have carried out such work together and their respective shares cannot be determined, they enjoy joint ownership of the knowledge.1

Ownership of knowledge generally entitles the owner to transfer it to other contractors of the project or to third parties. Participants in FP6 projects must, however, comply with the requirements and limits described in the EC contract that they have concluded with the Commission and its Annexes. The latter govern the transfer of ownership of results from the original owner (the assignor) to a new owner (the assignee).2

The provisions determine that a contractor who wants to transfer his knowledge has to take steps or conclude agreements to pass on the obligations under the FP6 project to his assignee. This requirement mainly concerns obligations set out in the context of access rights, dissemination and use. It asks the assignor to make sure the assignee is fully informed about the obligations and agrees to respect and fulfil them in the place of the assignor.

The assignor thus must ensure that the new owner fulfils the tasks of use and dissemination of the research results following the terms and details as set out in the "plan for using and disseminating the knowledge" and guarantees contractors’ obligatory access rights. This plan specifies contractors’ agreements on how to use knowledge for further research or commercial purposes as well as terms and means of dissemination.3 Contractors have to ensure that any new owner of their knowledge declares compliance with these principles.

As long as the contractor is required to grant access rights (i.e., licences or user rights for the knowledge concerned), he must also inform the Commission and the other project contractors prior to the transfer, specifying the planned assignment of knowledge and the prospective assignee. This will usually be the case as FP6 contractors are generally obliged to grant access rights to knowledge to their project partners if they so request for project execution or use of the project results.4

The Commission and the other contractors do have the right to object to a transfer of ownership within 30 days of notification.

Please note that, due to these objection rights, contractors will not be allowed to arrange for an automatic transfer of any knowledge that might arise in the course of the work as this would ignore the rights of their project partners and/or the Commission.

As the wording of the provision is not entirely clear as to whether the notification requirement applies to transfers to third parties only or also to transfers to other contractors of the same project, we recommend always notifying the Commission and the other contractors and/or clarifying the issue with Commission representatives in advance of any such transfer.

The provision specifically names the right of other contractors to object if the transfer would limit their access rights.5

The Commission can raise the following reasons to object to transfers to third parties, in particular when they are established outside the EU Member States or States associated with FP6:

the transfer does not comply with the interests of developing the competitiveness of the dynamic, knowledge-based European economy or
is inconsistent with ethical principles.

The Commission has published guidelines for the interpretation of these terms following its general reasoning to foster European economy and prevent European companies from being excluded from results of research generated using EU funding.

Accordingly, a possible objection may arise if the assignee gets an exclusive licence to the knowledge without ensuring compliance with the obligatory access rights. The contractors' would thus lose results, which would be contrary to European interests, in particular where transfers outside the EU are concerned.
Nevertheless, even transfers that allow contractors' access rights might interfere with European interests if knowledge is transferred to a contractor's direct competitor in a third country and if the knowledge is related to an area of direct competition of one of the contractors.
Inconsistency with ethical principles is presumed where transferred knowledge could be used in a way that is not in accordance with the fundamental ethical rules and principles recognised at national, European and international levels. At the national level, contractors thus must comply with the legislation of the countries where they carry out research and consecutive use. At the EU and international levels, conventions and declarations such as the EU Charter of Fundamental Rights must be complied with. The Commission will, for instance, object to any transfer of ownership that allows the assignee to carry out research concerning human cloning.

Apart from these concrete limits to knowledge transfer, contractors have to be aware that - as a general rule of FP6 projects - such transfers must not conflict with any other contractual obligations or individual agreements, such as the consortium agreements or an agreement on joint ownership (where applicable), or any limits linked to the obligation to protect knowledge.