Intellectual Property Management Policy

Title
Effective Date
Review Date
Application
Context
Policy Statement
Definitions
Policy Requirements
Roles and Responsibilities
Conflict of Interest
ESDC Code of Conduct
Consequences of Non-Compliance
Effect of this Policy on Existing Arrangements
Enquiries
References

15.1 Canadian Legislation
15.2 Federal Policies and Directives
15.3 ESDC Policies, Guidelines and Procedures
15.4 Other References

Appendix A: ESDC Intellectual Property Reporting Form

1. Title

Department of Employment and Social Development Canada Intellectual Property Management Policy

2. Effective Date

February 1, 2014

3. Review Date

February 1, 2019

4. Application

This Policy applies to all employees of Employment and Social Development Canada (ESDC), including the Labour Program and Service Canada, when Intellectual Property (IP) is created by, acquired by or licensed by or to ESDC, in order to meet ESDC's operational requirements and to generate knowledge and information for public dissemination.

5. Context

5.1 On behalf of the Government of Canada, ESDC is responsible for developing and implementing policies and programs in support of Canada's social programs and services.

5.2 ESDC is committed to the creation, acquisition, application, and management of Intellectual Property for the pursuit of social programs and services and to the enhanced performance of core Departmental functions and service delivery.

5.3 Supporting strengthened accountability for public monies and better results for Canadians, this Policy requires that Intellectual Property generated or acquired through Departmental resources be managed in a manner that is sensitive to risks, strikes an appropriate balance between control and flexibility, and establishes and applies best management practices, streamlined administration, and clear accountabilities.

6. Policy Statement

6.1 Policy Objectives

The objectives of the Policy are to:

provide managers and their staff with an overview of what constitutes IP at ESDC;
promote consistency in the identification, assessment, management, protection and use of IP at ESDC;
articulate roles, responsibilities and accountabilities for the management of ESDC's IP;
ensure consistency in policy interpretation, rationale and decision-making as they relate to the management of ESDC IP;
foster an environment where IP is treated as a valuable Crown asset and managed effectively for the benefit of Canadians; and
promote consistent, long-term business relationships between ESDC and its clients and collaborators.

6.2 Policy Guiding Principles

6.2.1 Guiding Principle 1

This Policy, and all decision-making within ESDC that pertains to Intellectual Property, are guided by relevant Canadian law and the principles, provisions and procedures set forth in the Government of Canada's regulatory and policy frameworks and objectives having a bearing on the management of Intellectual Property produced by federal departments and agencies. Such policies include, but are not limited to, the following policies and guidelines and those listed under references listed in Section 15:

Policy on Title to IP Arising Under Crown Procurement Contracts (Innovation Canada);
Implementation Guide for the Policy: Title to IP Arising Under Crown Procurement Contracts (Innovation Canada);
Values and Ethics Code for the Public Sector (Treasury Board);
ESDC Code of Conduct; and
Communications Policy of the Government of Canada (Treasury Board);.

6.2.2 Guiding Principle 2

Decision making as it relates to the management of Intellectual Property is consistent across ESDC.

6.2.3 Guiding Principle 3

Processes related to the identification, assessment, management, protection, and use of ESDC Intellectual Property are undertaken in a manner that weighs benefits, opportunities, costs, risks, liabilities and other policy or program considerations, in order to ensure consistent decision making.

6.2.4 Guiding Principle 4

All forms of Intellectual Property are managed with the same care and respect as is given to physical Crown assets.

6.2.5 Guiding Principle 5

Directors are accountable for the management of ESDC Intellectual Property for which they are responsible, including ensuring their employees have the resources, tools and training they need to ensure successful implementation of this Policy.

6.3 Expected Results

The expected results of this Policy are that:

decision making as it relates to the management of Intellectual Property is consistent across ESDC;
roles, responsibilities and accountabilities for the management of Intellectual Property are clearly defined and understood by all employees in ESDC.

7. Definitions

(a)"Background Intellectual Property" means all Intellectual Property that is not Foreground Intellectual Property. Note: The terms and conditions of Crown Procurement Contracts refer to this as “Background Information.”

(b) "Collaborative Agreement" means a legally binding agreement governing a cost-shared collaborative arrangement between ESDC and other person(s) or organization(s).

(d) "Department" or "ESDC" means Employment and Social Development Canada.

(e) "Foreground Intellectual Property" means Intellectual Property first conceived, developed, produced or reduced to practice as part of the work under a Crown Procurement Contract. Note: The terms and conditions of Crown Procurement Contracts refer to this as “Foreground Information.”

(f) "ESDC Intellectual Property" means Intellectual Property owned by the Crown and under the administration and control of ESDC.

(g) "Directors General" or "DG", for the purposes of this Policy, includes managers who hold a position equivalent to that of a Director General.

(h) "Intellectual Property" or "IP" means all rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields including all intellectual creations legally protected through legislation or common law. Intellectual Property may take the following forms:

Copyright, which gives rights to authors, artists, composers and other creators of original artistic, literary, musical or dramatic works, or compilations thereof. The works of those creators, such as books, drawings, presentations, reports, photographs, designs, videos, graphics, maps, music scores and software, are protected by a bundle of rights collectively known as "copyright." The Copyright Act therefore applies to a wide variety of works, including those produced by digital technology. In Canada, copyright generally lasts between 50 to 70 years beyond the death of the author. The Copyright Act also protects what are called neighbouring rights, such as sound recordings, performances by performing artists, and communication signals. Copyright arises automatically upon creation of an original work. While the Canadian Intellectual Property Office maintains a copyright registry, registration of copyright is not necessary for the owner of the copyright to benefit from protection under the Copyright Act. Section 12 of the Copyright Act further gives copyright ownership to the Crown, subject to any agreement to the contrary, where any work is, or has been prepared or published by or under the direction or control of Her Majesty or any government department;
Official marks, which are identifying marks and symbols of public authorities, including ESDC, for which a notice of adoption and use has been filed with the Registrar of Trademarks. The Trademarks Act prohibits the adoption, in connection with a business, as a trademark or otherwise, of marks that are identical to or so closely resembling as to be likely to be mistaken for an official mark of ESDC. A logo or crest may be protected as an official mark, as is the case for the “Service Canada” official mark. Official marks are prohibited marks under the Trademarks Act;
Trademarks, which are marks used by a person for the purpose of distinguishing his or her wares and services from those of others. Trademarks are governed by the Trademarks Act;

(i) "Intellectual Property Centre of Excellence" or "IPCOE" means the office within ESDC, whose roles and responsibilities are described in section 9 of the Policy.

(j) "Policy" means this Employment and Social Development Canada Intellectual Property Management Policy, approved by ESDC's Corporate Management Committee (CMC).

(k) "Procurement Contract" or "Contract" means an agreement between the Crown and a contractor for the acquisition of goods and services by the Crown. Note that this does not include Acquisition Cards; information about whether and when cardholders can use the Acquisition Card to purchase IP is available on the Acquisition Card page .

(l) "Transfer Payments" are monetary payments, or a transfer of goods and services, made, on the basis of an appropriation, to a third party, including a Crown corporation, that does not result in the acquisition by the Government of Canada of any goods, services or assets. Transfer Payments are categorized as grants, contributions and other transfer payments.

(m) “License,” “Licensee,” “Licensor” and “Use”: The Canadian Intellectual Property Office defines a license as a legal agreement granted by the owner of the IP (the licensor) to someone or an entity (the licensee) giving them permission to use the IP for certain purposes and/or under certain conditions. The term "use" means what is specifically set out in the terms and conditions of the particular licensing agreement and does not grant the licensee the right to unrestricted use of the IP unless so stated in the licensing agreement.

8. Policy Requirements

8.1 Ownership of Intellectual Property

8.1.1 Intellectual Property Authored or Created by ESDC Employees

(a) Trademarks and official marks must be acquired in the name of the Crown.

(b) As per section 12 of the Copyright Act, ownership of the copyright on the work authored or created by ESDC employees will vest in the Crown where the work is prepared or published by or under the direction or control of the Crown, subject to any agreement to the contrary.

8.1.2 Intellectual Property Authored or Created by ESDC Employees in Co-location Arrangements

Ownership rights to Intellectual Property created by ESDC employees in co-location arrangements with private, public or not-for-profit organizations, vest in the Crown. The agreement between ESDC and the hosting organization will reflect this Policy requirement.

8.1.3 Intellectual Property Authored or Created by ESDC Employees on their Own Time

(a) As per section 12 of the Copyright Act, ownership of the copyright on the work authored or created by ESDC employees on their own time will vest in the Crown where the work is prepared or published by or under the direction or control of the Crown, subject to any agreement to the contrary.

(b) Where any work has not been prepared or published by or under the direction or control of the Crown, by ESDC employees on their own time, but with ESDC facilities, ESDC equipment or ESDC funds, the Crown may consider, subject to applicable legislation and agreements, asking for a non-exclusive, royalty-free, irrevocable, fully-paid, perpetual, world-wide license to use the work.

8.1.4 Intellectual Property Arising under Crown Procurement Contracts

(a) Ownership: As provided in the Innovation Canada Policy on Title to Intellectual Property Arising under Crown Procurement Contracts (Innovation Policy on Title to IP), contractors will have ownership rights in the Foreground Intellectual Property, except in certain designated cases where ESDC may claim Crown ownership rights in the Foreground Intellectual Property. Those exceptions are set out in Appendix A of the Innovation Policy on Title to IP, and a Treasury Board exemption can be requested under Appendix A of the Innovation Policy on Title to IP.

(b) License to the Crown: Where the contractor is to have ownership rights in the Foreground Intellectual Property, the solicitation documents and the Contract must indicate that the contractor will own the rights to the Foreground Intellectual Property, and that the Crown may require a non-exclusive, royalty-free, irrevocable, fully-paid, perpetual, world-wide license to the Foreground Intellectual Property and to use any of the contractors Intellectual Property rights in any Background Intellectual Property required for ESDC to use the Foreground Intellectual Property and to modify, improve, translate or further develop the Foreground Intellectual Property, for any public purpose except for commercial exploitation in competition with the contractor. Any modifications, improvements, translations, or developments of the Foreground Intellectual Property effected by the Crown in the exercise of the license, shall vest with the Crown or in such a person as the Crown shall decide. However, the Crown may require Commercial Exploitation of the Foreground in Canada and/or within a specific period of time, to the extent that the requirement is consistent with Canada's trade agreement obligations, which can be specified in the contract or in a separate agreement between the Crown and the Contractor.

(c) Crown Ownership of Foreground Intellectual Property: Where the Crown is to have ownership rights in the Intellectual Property, the solicitation documents and the Contract must indicate that the Crown will own the rights to the Foreground Intellectual Property and the Crown will require a non-exclusive, royalty-free, irrevocable, fully-paid, perpetual, world-wide license to the Background Intellectual Property required for ESDC to use the Foreground Intellectual Property for any public purpose.

(d) Use of Acquisition Cards for Intellectual Property Purchases: Cardholders must always document and manage any IP purchased with the Acquisition Card in compliance with this Policy. For information on whether and when cardholders can use the Acquisition Card to purchase IP, please see the Acquisition Card.

8.1.5 Intellectual Property Arising under Transfer Payment Agreements

Ownership rights to Intellectual Property authored or created by a recipient of a Transfer Payment vest in the recipient of the Transfer Payment. ESDC may, however, seek non-exclusive licensed rights to the Intellectual Property so authored or created, provided that obtaining such licensed rights is secondary to the purpose/object of the Transfer Payment.

8.1.6 Intellectual Property Created under Collaborative Agreements

(a) If Intellectual Property is created under a Collaborative Agreement solely by one party, ownership and control of the Intellectual Property will remain with that party, unless otherwise provided under the Collaborative Agreement. A non-exclusive, royalty-free, irrevocable, fully-paid, perpetual, world-wide license will be granted to all parties to the Collaborative Agreement, for their specific purposes and use.

(b) ESDC will avoid co-ownership of Intellectual Property created jointly by ESDC and any of the collaborators in the context of collaborative arrangements. The IPCOE is to be consulted where co-ownership of Intellectual Property is being considered.

8.1.7 Intellectual Property Created under License Agreements

Licensees of ESDC Intellectual Property cannot improve, modify, create, manufacture or commercialize the works that incorporate or otherwise use the licensed ESDC Intellectual Property (collectively referred to as the "Licensee Improvements"), unless the licensing terms and conditions state otherwise. If a license allows the Licensee to make Licensee Improvements, the Licensee will own the Intellectual Property rights to such Licensee Improvements, unless the terms and conditions of the ESDC license allow otherwise. Where appropriate, ESDC will obtain a non-exclusive, royalty-free, irrevocable, fully-paid, perpetual, world-wide license to exercise the licensee's Intellectual Property rights in the Licensee Improvements.

8.2 Protection of Intellectual Property

It is the policy of ESDC to protect ESDC Intellectual Property in a manner that supports its mandate and objectives and to respect the Intellectual Property rights of third parties. DGs will review IP protection needs at the planning and development stage of the program and service lifecycle. When IP protections are required, DGs, in consultation with the IPCOE, will assess whether statutory protection for ESDC Intellectual Property should be obtained.

8.2.1 Statutory Protection

ESDC will protect its Intellectual Property, including through official marks notifications. Copyright works receive statutory protection automatically (per the Copyright Act) and no registration is required. ESDC will comply with the Federal Identity Program Policy in consultation with the Public Affairs and Stakeholder Relations Branch (PASRB) and, where appropriate, will protect its identifying marks and symbols through a notice to the Registrar of Trademarks of adoption and use of official marks. Please refer to section 8.6 for additional information on the subject of infringement and litigation.

8.2.2 Protection of Third Party Intellectual Property

Employees are responsible to ensure that they adhere to terms and conditions governing IP that has been licensed to the Crown by third parties. Failure to do so may result in disciplinary action as per section 12 of this Policy and legal action against the employee and/or the Crown.

8.2.3 Copyright Notices

ESDC publications and other ESDC copyrighted works authored by ESDC employees (or in respect of which the Crown owns the copyright) must carry the following copyright notice:

8.3 Assignment, Licensing and Permissions Regarding ESDC Intellectual Property

ESDC will seek the most effective mechanisms to disseminate ESDC Intellectual Property, consistent with its objectives and corporate goals. The dissemination of ESDC Intellectual Property may be accomplished by assignment, license agreements, notice or permission letters, data and information sharing agreements and other legal, written instruments, as authorized.

8.3.1 Assignment of ESDC Intellectual Property

Assignments of ESDC Intellectual Property will comply with the provisions of the Department’s enabling legislation, the Financial Administration Act (FAA), the Surplus Crown Assets Act, applicable Intellectual Property law and other applicable legislation and policies. Assignments of ESDC Intellectual Property may only be authorized by the appropriate Assistant Deputy Minister (ADM) and the Chief Financial Officer (CFO), after consultation with the Intellectual Property Centre of Excellence and Legal Services.

8.3.2 Licensing of ESDC Intellectual Property

(a) For help with terms used in this section, see the definitions in this Policy under section 7.m.

(b) There are three (3) kinds of IP license grants:

Non-exclusive licenses, which enable the licensor to grant many different permissions to many different entities to exercise the licensed IP rights;
Sole licenses, whereby the licensor is precluded from granting any other licenses in respect of the IP rights licensed on a sole basis, during the term of the sole license, but not precluded from exercising those same rights itself; and
Exclusive licenses, which give licensees the right to exercise the licensed IP rights and to prevent all other persons, including the licensor, from exercising these same rights.

(c) Licenses may be further restricted for specific purposes, durations, territories, languages, media, or combination of these.

(d) The following principles will be followed with respect to the licensing of ESDC Intellectual Property:

Favour Non-Exclusive License Grants: ESDC will favour granting non-exclusive licenses. Non-exclusive license agreements may only be executed by the appropriate DGs.
Avoid Sole License Grants: ESDC will refrain from granting sole licenses to avoid hampering competition. The appropriate DG will consult with the IPCOE whenever a sole license agreement is being considered. Sole license agreements may only be executed by the appropriate DG.
Avoid Exclusive License Grants: ESDC will avoid granting exclusive licenses, as such would preclude ESDC, as licensor, from exercising any of the IP rights that are covered by the exclusive license grant. The appropriate DG will consult with the IPCOE whenever an exclusive license agreement is being considered. Exclusive license agreements may only be executed by the appropriate DG.
Sub-licensing Rights: ESDC licenses will not normally include the right to sub-license. A right to sub-license may however be granted in certain instances, such as where the licensee can only obtain significant benefits through sub-licensing, or where the commercialization of the Intellectual Property would be enhanced. The appropriate DG will consult with the IPCOE whenever a sub-licensing agreement is being considered. Sub-licensing agreements may only be executed by the appropriate DG.
Royalty-Free versus Royalty-Bearing Licenses: Whether or not it is appropriate to charge royalties for licenses to ESDC IP depends to a large extent on the corporate objectives of the creating branch of the Department, and those of the Department as a whole. DGs will assess whether or not it is appropriate to license ESDC IP on a royalty-bearing basis.

8.3.3 Permissions Related to the Use of Crown-Owned Intellectual Property

(a) The use of Crown-owned Intellectual Property can facilitate the dissemination of information for the benefit of Canadians. Care must however be taken to prevent the disclosure of information that can devalue the Intellectual Property disclosed therein or be contrary to contractual arrangements.

(b) Permission to Reproduce Crown copyright material: The Creative Services group of the Public Affairs and Stakeholder Relations Branch (PASRB) is the Departmental resource that manages the corporate look and visual identity of ESDC. They offer strategic, creative and technical advice in the creation and/or procurement of products and services and ensure appropriate and consistent branding in all publishing activities. In addition, this group is responsible for coordinating, in consultation with the responsible ESDC Branch, the granting of permissions to reproduce any copyright material owned by ESDC and provides direction related to ESDC graphics, photographs, videos, branding, publishing, and products and templates. Employees should consult with the Creative Services group directly for further direction.

A reproduction means making a copy of information in the manner that it is originally published. The reproduction must remain as is, and must not contain any alterations whatsoever.
The terms personal and public non-commercial purposes mean a distribution of the reproduced information either for the reproducers own purposes only, or for a distribution at large whereby no fees whatsoever will be charged or is not intended for commercial purposes.
The term cost-recovery means charging a fee for the purpose of recovering printing costs and other costs associated with the production of the reproduction.

(c) When permission to reproduce Crown copyright material will be denied: Permission to reproduce works subject to Crown copyright will be denied where the intended reproduction would, in the opinion of the responsible DG:

damage the reputation of ESDC;
be contrary to ESDC's mandate, goals, or purpose;
be considered unfair, misleading or inaccurate;
be used in a context that may prejudice or harm a third party;
be considered out-of-date;
infringe on the Intellectual Property rights or proprietary rights of a third party; or
suggest an endorsement by ESDC.

(d) Permission to Reproduce Crown copyright material, for non-commercial purposes: Written permission to reproduce ESDC works, in part or in whole, and by any means, for personal or non-commercial purposes, or for cost-recovery purposes, is required. Permission to reproduce, in part or in whole, without any revisions, adaptations, or translations, for personal or non-commercial purposes shall be granted subject to the items listed in section 8.3.3.c. above and subject to other agreements.

(e) Permission notice: In order to facilitate the administration of such permissions to reproduce ESDC works, it is recommended that ESDC-copyrighted works intended for public dissemination or other ESDC publications, whether free or priced, should carry a permission notice, i.e. a notice to the public allowing the reproduction and distribution of the work, for personal or non-commercial purposes. The permission notice may be in the following terms:

"This report [or the work otherwise described] may be reproduced, in part or in whole and by any means, without charge or further permission from Employment and Social Development Canada for personal or public non-commercial purposes, provided that:

Due diligence is exercised in ensuring the accuracy of the materials reproduced;
Indicate both the complete title of the work reproduced, as well as the ESDC is identified as the source department; and,
Indicate that the reproduction is a copy of the official work that is published by the Government of Canada and that the reproduction has not been produced in affiliation with, or with the endorsement of the Government of Canada and/or ESDC."

(f) Permission to reproduce Crown copyright material, for commercial purposes: Permission is always required when the work being reproduced will be distributed for commercial purposes.

Subject to the items listed in section 8.3.3.c. above and subject to other agreements, reproduction of ESDC publications for commercial purposes requires the written permission of the appropriate DG and the Creative Services group of PASRB. Such permission is to be granted preferably under a non-exclusive license agreement, and may be subject to a reasonable fee (see section 8.7 below), provided that:

Due diligence is exercised in ensuring the accuracy of the materials reproduced; and,
The complete title of the work reproduced is identified, and ESDC is identified as the source department; and,
The reproduction is a copy of the official work that is published by the Government of Canada and that the reproduction has not been produced in affiliation with, or with the endorsement of, the Government of Canada and/or ESDC.

(g) Permissions to do acts other than reproduce Crown copyright material: Permission is further required when the work is being revised, adapted, or translated regardless if the purpose is for personal or non-commercial purposes. Such permissions require the written permission of the appropriate DG and the Creative Services group of PASRB on a case-by-case basis, subject to the items listed in section 8.3.3.c. above and subject to other agreements.

(h) Permission to reproduce trademarks or official marks: Treasury Board's Federal Identity Program Policy sets out corporate identify standards for the Government of Canada to ensure the public can clearly recognize federal activities by means of consistent identification. In order to protect the corporate identity of the Government of Canada, reproduction of ESDC official marks or trademarks, including symbols, whether for non-commercial or commercial purposes, is prohibited without prior written authorization from the appropriate DG and the Creative Services group of PASRB. In particular, the official symbols of the Government of Canada, including the Canada word mark, the Arms of Canada, and the flag symbol may not be reproduced, whether for commercial or non-commercial purposes, without prior written authorization from the Treasury Board Secretariat or Canadian Heritage, as may be appropriate.

However, permission may be granted to use trademarks or symbols that resemble or replicate ESDC official marks or trademarks, including symbols, so long as the wares or services intended for sale under the intended trademarks are not in conflict with ESDC use of the ESDC official marks or trademarks. Permission may be granted in writing by the appropriate DG, in consultation with the IPCOE and the Creative Services group of PASRB. Such permission will take the form of a non-exclusive license agreement and may be subject to a reasonable fee (see section 8.7 below).

(i) Permission to register a Trademark Resembling an ESDC Official Mark or Trademark: ESDC may authorise third parties to register trademarks that resemble or replicate ESDC official marks or trademarks, if the wares or services intended for sale under the intended trademarks are not in conflict with ESDC use of the ESDC official marks or trademarks. Permission may be granted in writing by the appropriate DG, in consultation with the IPCOE and the Creative Services group of PASRB, and may be subject to a reasonable fee (see section 8.7 below).

(j) Data and Information Sharing: Any information or database sharing must respect the Government of Canada and departmental legislation and policies with regards to security, privacy and access to information.

8.4 Contract Management

8.4.1 Intellectual Property Related License Agreements

DGs are responsible for monitoring compliance with the terms of license agreements granted under their authority or that of their ADM.

8.4.2 All types of agreements

DGs must ensure that:

an agreement is signed prior to the commencement of any work and/or activities; and,
the agreement clearly addresses ownership rights and uses in the IP allowing the Department to meet its objectives consistent with the requirements set out in this Policy; and,
licenses granted by ESDC to third parties comply with the requirements set out in this Policy; and,
parties to an agreement fully comply with the terms and conditions of the agreement, including reporting and full disclosure of any IP resulting from the work and/or activities.

8.4.3 Crown Procurement Contracts

(a) Contractor Ownership of Foreground Intellectual Property: When ESDC intends that the contractor will own the Foreground Intellectual Property, the appropriate section (i or ii) below applies.

(i) in a competitive bidding situation, the branch requisitioner must advise the Contracting Authority (ESDC Procurement Team, Chief Financial Officer Branch), who will indicate in the solicitation documents:

that the contractor will own the Foreground IP; and,
the terms of the license required by ESDC to the Foreground IP and, where required, to the contractor's Background IP; and,
The requirements for commercialization in Canada and/or within a certain time frame, if any.

(ii) in the case of a sole source contract, the branch requisitioner must advise the Contracting Authority (ESDC Procurement Team, Chief Financial Officer Branch), who will indicate to the contractor, in writing, and in advance of negotiations:

that the contractor will own the Foreground IP; and,
the terms of the license required by ESDC to the Foreground IP and, where required, to the contractor's Background IP; and,
if any, the requirements for commercialization in Canada and/or within a certain time frame.

(b) ESDC Ownership of Foreground Intellectual Property: When ESDC intends to own the Foreground Intellectual Property by invoking an exception set out in Annex A of the Innovation Policy on Title to IP or a Treasury Board authorized exemption under Annex A of the Innovation Policy on Title to IP, the appropriate section (i or ii) below applies.

that the Crown will own the Foreground IP and,
the exception being invoked, or where relevant, the specific components of the Foreground Intellectual Property that the Crown will own and the exception being invoked.

that the Crown will own the Foreground IP; and,
the exception being invoked, or, where relevant, the specific components of the Foreground Intellectual Property that the Crown will own and the exception being invoked.

(iii) In the event that the Crown takes ownership of the Foreground Intellectual Property, the Crown should not unreasonably refuse to grant a license to the Contractor for the Contractor's use of the Foreground or Background as required to use or commercialize the Foreground. If such a request is refused, the Crown's response must provide an explanation for the refusal. When the Crown takes ownership of the Foreground through the use of exceptions described in Sections 4.2 or 4.3 of Annex A of the Policy on Title to Intellectual Property Rights Arising under Crown Procurement Contracts, and in the event that the Crown grants (not necessarily to the original contractor) a license for the Foreground, other than a license granted as part of the transfer of the final product or complete system to the private sector, the license granted must be royalty-free. When the Crown takes ownership through the use of any other exception, the Crown may require royalties for the license.

8.5 Reporting and Disclosure of Intellectual Property and Document Management

8.5.1 Disclosure of Intellectual Property

(a) Intellectual Property Created or Acquired by ESDC employees: Employees are required to disclose all IP they create or acquire, as requested by their Director on behalf of ESDC.

(b) Intellectual Property Arising from Crown Procurement Contract: When procuring goods and services, ESDC must ensure compliance with all federal policies relating to Crown procurement and specifically with the Innovation Policy on Title to IP.

Directors requisitioning goods and /or services must ensure that contractors fully disclose and report any and all Foreground IP and any other IP, knowledge and information that might be required by the Crown to exercise the Foreground IP rights.

(c) Intellectual Property Arising under Transfer Payment Agreements: Where a non-commercial license is provided to ESDC under a Transfer Payment agreement to use the IP for public purposes, the Director responsible for this Transfer Payment agreement must ensure that any IP arising under this Transfer Payment agreement is fully disclosed and reported to ESDC by the recipient of the Transfer Payment.

(d) Intellectual Property Arising from Collaborative Agreements:

ESDC employees must disclose to their Directors, on behalf of ESDC, any and all IP they create or acquire in the context of collaborative agreements.

Directors responsible for Collaborative Agreements must ensure that all IP resulting from work performed by ESDC employees and other participants to a collaborative agreement is fully disclosed and reported to ESDC by all participants.

8.5.2 Information Management and Reporting

(a) Information related to IP that is subject to this Policy shall be tracked and managed using the Departmental IP Management Report, using the form in Appendix A and submitted to the IPCOE by the end of each fiscal year.

(b) At a minimum the following IP information must be tracked and managed by branch managers: IP created and/or acquired which has a commercial value, that pertains to software or technological tools, that pertains to a formal government publication, that pertains to official marks or trademarks of the government, that pertains to assignments, that pertains to licenses obtained or given to third parties, and all other IP and/or permissions of significant value or importance.

(c) As per the reporting requirements set out in the Innovation Policy on Title to IP, the Contracting Authority must maintain records on file for all Crown Procurement Contracts that produced Foreground Intellectual Property to indicate:

whether the contract provides for Contractor-owned Foreground Intellectual Property;
whether the contract provides for Crown-owned Foreground Intellectual Property and if so the Innovation Policy (Annex A) exception(s) invoked; and,
whether there is potential for commercial exploitation of the Foreground Intellectual Property.

8.6 Infringement and Litigation

Any real or potential cause of action, suit or other judicial proceedings involving IP owned or used by ESDC will promptly be brought to the attention of the appropriate DG, Intellectual Property Centre of Excellence and Legal Services. The appropriate DG, after consultation with the Intellectual Property Centre of Excellence and Legal Services, will remedy the situation, as required.

8.7 Revenue Retention

Generally, ESDC does not own any IP that would generate revenue. Should Branches identify IP of significant value owned by the department that could generate revenues, please consult with your financial management advisor for direction.

9. Roles and Responsibilities

9.1 Deputy Minister

The Deputy Minister is responsible for implementing the ESDC Intellectual Property Management Policy.

9.2 Employees

The roles and responsibilities of the ADMs, DGs and Directors and of all ESDC employees are as set out in this Policy.

9.3. Intellectual Property Centre of Excellence (IPCOE)

The IPCOE is responsible for developing general policies, guidelines and procedures on managing IP within the department; and for providing ESDC managers and employees with training, guidance and advice on the protection, management and deployment of IP. In addition, the IPCOE is responsible for:

IP issues tracking and IP knowledge bank creation;
Departmental IP inventory and reporting framework, as per section 8.5.2 of this Policy;
reporting on IP management issues and performance brought forward by branches to the IPCOE;
advising the department on IP related matters;
liaising with other departments and organizations on IP best practices; and
consulting with Legal Services as needed.

9.4 Legal Services

If, after the appropriate ESDC centers of expertise have been consulted, there remain any legal questions or issues, Legal Services may be contacted via submission of a Request for Legal Advice form for the provision of legal advice related to IP. The client will be required to complete the form, have it approved by their DG in an e-mail, and submit it to the IPCOE. Upon review and discussion with the client, if required the IPCOE will then forward it to Legal Services. Legal Services will coordinate any details and information required directly with the client in order to provide a Legal Opinion. In addition, when Legal Services is directly involved in the development or planning of a new program or service, Legal Services will help program staff identify IP protection needs and may, if necessary, ask program staff to contact IPCOE. The IPCOE is to remain included in all communications in order to build the IP knowledge base for the department.

9.5 Public Affairs and Stakeholder Relations Branch (PASRB)

The Creative Services group within PASRB is the Departmental resource that manages Treasury Board’s Federal Identity Program for ESDC. They offer direction and strategic, creative and technical advice in the creation and/or procurement of products and services and ensure appropriate and consistent branding in all publishing activities. In addition, this group is responsible for coordinating, in consultation with the responsible ESDC branch, the granting of permissions to reproduce any copyright material owned by ESDC. When PASRB is involved in the branding of a new program or service, PASRB advisors help program staff identify IP protection needs (with respect to branding) and may, if necessary, ask program staff to contact IPCOE. Employees should consult with the PASRB Creative Services group directly for further direction.

10. Conflict of Interest

(a) It is the policy of the Government of Canada to minimize the possibility of conflicts between the private interests and the public service duties of employees; and, to resolve any such conflicts in favour of the public interest. Employees must take measures to prevent real, potential or apparent conflicts in accordance with the principles of conduct and measures in the Conflict of Interest and Post-Employment Code for the Public Service.

(b) All ESDC employees must conform to the requirements of the Conflict of Interest and Post-employment Code for the Public Service. ESDC employees must ensure that their activities are conducted in support of the overarching objective of maximum benefit to Canada and Canadians, and not in support of personal interests or the interests of any third party.

11. ESDC Code of Conduct

All employees shall respect the ESDC Code of Conduct with respect to any matters related to IP.

12. Consequences of Non-Compliance

Non-compliance with this policy may give raise to disciplinary action, which may include an oral or written reprimand, financial penalty, suspension or termination of employment consistent with the Treasury Board Framework for the Management of Compliance.

13. Effect of this Policy on Existing Arrangements

Notwithstanding any contrary provision in this Policy, all contracts and arrangements existing at the time of the adoption of this Policy between ESDC and other federal departments, levels of government, industry and academia, which relate to Intellectual Property and in which ESDC has an interest will remain in full force and effect.

14. Enquiries

For any other Intellectual Property related matters or enquiries about this Policy, please consult with the IPCOE.

>15. References

15.1 Canadian Legislation

15.2 Federal Policies and Directives

15.3 ESDC Policies, Guidelines and Procedures

For the latest tools and guidelines, see also the IPCOE page
Guidelines: ESDC Handbook for the Personal and Official Use of the Internet and IntraWeb
ESDC Code of Conduct
Publishing Guide
Publishing and Multimedia Services
Smart Publishing Guidelines

15.4 Other References

Appendix A: ESDC Intellectual Property Reporting Form

The ESDC Intellectual Property Reporting Form is available in Microsoft Excel format (XLSX, 15.4 KB).