When fulfilling a public contract, the result of the work accomplished by the successful tenderer may be covered by different intellectual rights, mainly via copyright or patent rights, but may also be considered protected know-how.
The contracting authority may then be confronted with different questions:
- Do intellectual rights allow for the use of results by the government or the contracting entity?
- How can we ensure that the contractor has respected others’ intellectual rights?
- What is the influence of administrative public access obligations on the administration?
- Beyond the specific context of public contracts, there is also the question of intellectual property of documents or other creations produced by statutory or contract agents.
Intellectual property and the results of public contracts
Intellectual property rights for work accomplished by the successful tenderer for a public entity or contracting authority are not automatically transferred to the latter, as indicated in Article 14(3) of the general specifications applicable to all public contracts.
However, the use of the results of a public contract may involve acts requiring the authorisation of copyright, patent rights, or other intellectual rights for these results. For example, a study carried out for the administration is protected by copyright, the same as for a computer program developed specifically for a public entity. A particular technical process updated to resolve a specific problem may be protected by a patent.
The general specifications applicable to public markets indicate that the contracting authority may, in all cases, use the results of the public contract within the limits of its needs or those of third parties designated in the special specifications, and benefits from a licence to use patents which would apply to these results.
The contracting entity may also obtain a transfer of potential rights to the results if such a transfer is indicated in the special specifications and if it is required for the use, by the public entity, of the results of the public contract. For example, acquiring the patent for a particular lift mechanism developed as part of the construction of an office building for an administration is of no interest to a public entity. However, acquiring the copyright for a website developed for an administration is useful for controlling and updating this site.
In case of transfer of rights or of a licence to use indicated in the special specifications, the contracting authority must be aware of the following issues:
- Concerning copyrights: The moral right of authors may not be subject to a transfer or a licence and is retained by the creators;
- Concerning computer programs: It is important to specify in the special specifications that a transmission of the source code (or access methods to this code) to the contracting authority shall occur. Any integration of licence-free software by the contractor must be verified as it would prevent the contracting authority from using the non-free model of the final software;
- Concerning know-how: The general specifications require the contracting authority to respect the confidentiality of methods and the know-how of the contractor, which is required itself to provide these methods and know-how to the contracting authority.
The conditions of commercial use of the results of public contracts by the contractor must be indicated in the special specifications. If the research and development were partly financed by the contracting authority, remuneration may be owed to this authority. The contracting authority must, in all cases, pay attention to the clauses on the intellectual property rights which would be submitted to it by the contractor and verify whether these conditions give the public entity full discretion for the use of the results of the public contract.
When specific research or services were financed by public funds, the contracting authority must also ensure that free access is ensured to the developed data, as recommended by the OECD.
The respect of intellectual rights of others and the obligation to inform the contracting authority
The general specifications specify that the contractor shall guarantee the contracting authority that it will respect the intellectual rights of others when carrying out the public contract.
The contractor is also required to inform the contracting authority of any intellectual right or licence which it may hold and which is required to carry out the work.
Intellectual rights and public administrative access
Due to the public access requirements for public authorities, specific rules apply for the use of certain results of public contracts.
The public access law requires access to administrative documents. The administration’s copyright on certain documents may not be invoked to prevent citizens’ access to these documents. If a third party has a copyright for certain documents – for example, an architect for construction blueprints attached to an urban planning permit – this third-party copyright may justify the administration's decision to prevent citizens from copying these documents, but may not prevent citizens from accessing them on-site. To ensure the effectiveness of public access laws, public entities must be careful to obtain the rights necessary for this access by citizens, via a transfer or licence.
In addition, the law on the re-use of public sector information of 7 March 2007 encourages administrations to sign licensing agreements with third parties interested in commercial use of public data. The administration may not invoke a protection right for public databases to refuse authorisation of these licences. The fact that a third party (for example, a successful public contract tenderer) has intellectual rights over this public data constitutes an exception to the requirement to encourage the re-use of public sector information.