A:

The simple answer is ‘Not easily’ not as Subcontractors. Subcontractors get 100% of their costs paid for the work (with profit built in). The person that paid for the work, i.e. the contractor owns it.

As core work is not allowed to be subcontracted, you have to ask yourself what work is being produced that generates this disputed IPR. The best way out of this, is for the Subcontractor to become a contractor.

The official Commission response is:

“…According to provisions included in article II.6 of the FP6 model contract, the participant (contractor) is responsible for carrying out the tasks of a project. Only a contractor has a contractual relationship with the Commission on the basis of which the project’s tasks are to be realised, and from which arise the contractual rights and obligations related to the project.

The realisation of the project’s tasks will often lead to the creation of “knowledge” defined as results arising from the project and only the contractor is responsible for meeting the obligations of the contract with respect to those results. These include the obligations to protect any knowledge generated, and the provisions of the contract that indicate that knowledge shall be the property of the contractor carrying out the work leading to that knowledge (Article II.32 of the FP6 model contract) and the provision of access rights arising from the contract.

Subcontracting is a means by which the contractor ensures that some (usually minor) parts of the contract are carried out by it but indirectly. Therefore, the contractor continues to retain all rights and obligations under the contract and subcontracting does NOT transfer to a subcontractor any rights or obligations vis-à-vis the Commission or the other contractors. Neither does it create any status equal to the contractor in regard to the IPR, even where some core tasks of the project may have been carried out with the assistance of subcontractors. This is because the role of the subcontractor is to provide a service to the contractor, be paid in full for that service and cede the rights and obligations to the contractor who then carries out its obligations and rights under the EC contract.

It is still the contractor who is considered to have carried out the tasks of the project even if it has relied upon the assistance of a third party in part.

In the light of the above, a subcontractor may become an owner of the knowledge arising from the realisation of the tasks it carried out, only in two cases:

1.   The contractor transfers ownership of knowledge to the subcontractor (taking into account the provisions of Article II 32.4) and based on prior notification to the other contractors and to the Commission

2.       The subcontractor changes status and participates in the project as a contractor…”