N. 38, April - June 2008 
IP & RTD: Articles 

Consortium agreement models for FP7 participants
Theo Stamatiadis
IPR-Helpdesk Legal Expert
 
The Seventh Framework Programme (FP7) is well under way. Many consortia have already responded to calls for proposals published by the European Commission, some have already signed their consortium agreements, while others are in the process of negotiation or will be entering negotiations shortly. Most of them, probably a large majority, use the existing consortium agreement models as a basis for negotiation.

Four consortium agreement models have appeared so far. First there was DESCA, which seeks to strike a balance between conflicting interests (typically, those of academic and industrial participants) and to serve the needs of consortia with different compositions and orientations. To succeed in this ambition, DESCA has a modular structure that enables it to adapt to both small and large projects. More importantly, it provides two alternative options in several key clauses, which can change the orientation of the agreement significantly. Generally speaking, one of the options closely follows the regime established in the grant agreement, while the other, more audacious, is meant to enhance the economic exploitation of the results.

Up to now, at least based on the experience of IPR-Helpdesk, which receives and revises a considerable number of draft consortium agreements through its Helpline service, DESCA seems to have succeeded in meeting the needs of many different consortia. Indeed, most of the draft agreements that we receive are based on the DESCA model. In addition to its modular character, DESCA is written in a simplified way and is therefore more accessible to researchers, research managers or Small and Medium Enterprises who are not expected to possess profound legal knowledge but are called on to deal with consortium agreements and manage their intellectual property.

However, another explanation for the high proportion of DESCA-based consortium agreements is the fact that all the other models – EICTA-IPCA, EUCAR and IMG4 – have their origins in specific industrial sectors: respectively, information and communication technologies, automotive and aeronautics. One may thus believe that these models are specifically designed for participants from these sectors and should be used exclusively by them. This is not entirely true. IMG4, for example, is a model largely based on DESCA. The drafters chose between the alternative options provided by DESCA and made some additional changes that may prove very interesting to some participants. One such worth highlighting is the modification of the clause related to joint ownership, numbered 8.1 in both models: IMG4 seems to strike an effective balance between the two DESCA options while taking into account the grant agreement default regime.

The EICTA-IPCA model proposes a radically different philosophy in several key clauses related to intellectual property, and can thus serve participants that do not deem their interests to be adequately protected by DESCA. A first reading of this model may raise doubts, especially because it often tends to move away from the grant agreement regime with which many participants are familiar. Nevertheless, EICTA-IPCA can efficiently serve the interests of industrial participants and is undoubtedly worthy of close examination. The access rights regime and joint ownership regime it proposes, combined with the provisions related to sideground and affiliated entities, are capable of boosting the potential of a consortium that seeks to commercially exploit its results.

Finally, EUCAR also proposes some interesting ideas. First of all, it is the only model that proposes a different access rights regime for participants in different subprojects, although the organisation of a project into subprojects is also proposed by DESCA and IMG4. Moreover, it generally focuses on the commercial exploitation of results, along the lines of the EICTA-IPCA philosophy, but it also makes it considerably easier for each participant to disseminate its own foreground.

Clearly, there is much more to discuss about the four models. Part of this discussion, or at least part of the discussions that we hold in IPR-Helpdesk while studying the models, is incorporated in our document1 comparing the models’ IP-related clauses. However, this document does not say which model is the best. Our discussions do not lead to a conclusion either. In fact, there is no answer to this question.

What we can say is that the best consortium agreement for a particular project will probably be the one that ensures its effective implementation, the one that helps avoid and resolve disagreements between the members of a consortium and the one that leads to the successful use and dissemination of the results generated. In other words, a consortium agreement that is well negotiated and drafted. Whichever model a consortium uses as a basis, its efficiency will depend on how well the members of the consortium have examined the model and modified it where necessary.

Maybe the most accurate recommendation here is for participants to know their interests and, regarding intellectual property in particular, understand the implications of the clauses related to background, foreground, access rights, etc. There is no point in negotiating an agreement and contradicting the positions of the other participants if one does not have a clear idea of what it really wants to achieve in the project. Similarly, there is no point in negotiating the clauses related to intellectual property if one does not understand, or even predict, the outcome of one option or the other. Regarding IP-related issues, we believe that IPR-Helpdesk provides more than sufficient information to understand the issues at stake, even without any previous knowledge of legal matters. Other sources are, of course, widely available both at the national and European level and we refer to them every time we consider it useful.

All in all, there is no excuse for a project to fail due to a consortium agreement that was poorly negotiated and hastily signed. The models are there to help, with their qualities and flaws, and we are there to provide additional information whenever necessary. Clearly, choosing a model and working to adapt it to specific needs entails investing time and effort, but this is an investment that often pays off.

Several organisations define their strategy in advance and prepare their own basis for negotiation, carefully studying and modifying one of the models – the one that they consider most adequate. They use it for all the projects in which they participate and often discover that the initial effort is more than worthwhile, as they improve their competences in consortium agreement negotiation and intellectual property management. We sincerely hope that such efforts will find imitators and that the efficiency of FP7 consortium agreements will continue to improve with time.





1. Available at the following link. See also the table that resumes the differences between the models.(«)