ACQUISITION CARD - Intellectual Property (IP) and Security WebEx Session

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Presentation delivered on: May 29^th, 2019

Table of content:

IP the basics
IP - How do I know?
IP - What's the big deal?
IP - Case Studies
Security and Aquisition
Security - How do I know?
Security - Case Studies
Key Contacts
References

Intellectual Property - The Basics

"Intellectual Property" (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.

Foreground IP: IP first conceived, developed or produced as part of the work under a Crown Procurement Contract.

IP and the Acquisition Card

Para 6.1 of the Acquisition Card Policy, Procedures & Guidelines prohibits the use of the AC when departmental standard terms and conditions must be used (e.g. a statement of work is required to ensure ESDC receives the services required, or the contract involves the creation of intellectual property).
If IP is being created, DO NOT use an AC

Background IP: Anything that is not foreground IP

Online Services using an AC

For online services purchased via Acquisition Card: Employees with cards (cardholders) must review website’s Terms of Use before creating an account for services. See our Procurement Bulletin. This will ensure you know how any background IP can be used.
Be careful with the use of music and artwork / pictures. When in doubt, contact the IPCOE.
Prior to purchasing any service where government or personal information will be entered, please discuss with the Privacy group.

Intellectual Property - How do I know?

How do I know whether I am going to be creating new (foreground) IP?

Likely need a contract with IP clauses:

The purchase will result in something being written, filmed, recorded or designed;
You are having an existing work translated and are not doing a call up against a standing offer;
You are using pre-existing IP and want to change it;
When any private information will be used in the creation or delivery of the final product.

Can generally use your AC when:

You are paying a fee to use a service and will not be modifying it in any way (although terms and conditions will still need to be checked and approved);
You are paying a fee to allow someone to attend a pre-designed training session;
You are paying to have closed-captioning added to an ESDC-developed video.

What is the difference between a translation and closed captioning?

In general, it comes down to a question of how much creativity comes into providing the service. When doing a closed captioning or a transcription of a conversation, there is no room for creativity. Theoretically, any number of people would produce identical products. With translations (into another language, sign language, another format), there is room for interpretation. Different people could produce different translations.

Intellectual Property - What's the big deal?

Why is it so important for me to use IP clauses?

We use IP clauses to protect the Crown in several ways. For example, it specifies:

Who will own any IP that is created. In general, the Crown’s default position is that the contractor retains IP rights, unless one of five exceptions apply, or a special TB exceptions has been granted;
What licensing rights apply, and under what circumstances;
That the contractor will protect the confidentiality of any personal information provided by the Crown used to create the deliverable;
How Canada can use the foreground information in the future, for its own use, or in order to modify it or use it for the creation of additional deliverables;
Whether Canada can use any background IP used by the contractor to produce the deliverable in the future;
How and if any information can be transferred or sold to a third party;
That the contractor had the legal right to use any third party IP that was incorporated into the deliverable;
Other terms and conditions, depending on the clause that is used.

Exceptions:

By default, the Contractor is to own the Foreground IP arising under Crown Procurement Contracts, unless the Crown claims one of the exceptions listed below, or applies for a TB exemption from this Policy through a TB Submission. Under the Crown Procurement Contract, the Crown may claim ownership of the Foreground IP for the following reasons (please see Implementation Guide for further details, and for model clauses consistent with this Policy):

(1) National security.

(2) Where statutes, regulations or prior obligations of the Crown to a third party or parties preclude Contractor ownership of the Foreground IP.

(3) When the Contractor declares in writing that he/she is not interested in owning the Foreground IP.

(4) Where the main purpose of the Crown Procurement Contract, or the deliverables contracted for, is:

(4.1) To generate knowledge and information for public dissemination.

(4.2) To augment an existing body of Crown Background as a prerequisite to the transfer of the expanded Background to the private sector, through licensing or assignment of ownership (not necessarily to the original contractor), for the purposes of Commercial Exploitation.

(4.3) To deliver a not-yet fully developed component or subsystem that will be incorporated into a complete system at a later date, as a prerequisite to the planned transfer of the complete system to the private sector, through licensing or assignment of ownership, for the purposes of Commercial Exploitation.

(5) Where the Foreground IP consists of material subject to copyright, with the exception of computer software and all documentation pertaining to that software.

Licensing Rights:

In general, even though the contractor will retain IP ownership, the clause will grant to Canada a non-exclusive, perpetual, irrevocable, world-wide, fully-paid and royalty-free license. In some cases, the license could be for a fixed term, and in others, we may be given no rights.

Intellectual Property - Case Studies

Case Study #1: ESDC previously designed and produced an English video and would now like to have it translated into French. For each situation, do I use a contract or AC?

I want to hire a company to write the translation.
I want to hire someone to produce a new video.
I want to hire someone to write music to be played in the video.

Answers

Case Study #1: (1) Contract; (2) Contract; (3) Contract

Case Study #2: I work in a section that regularly needs to design documents, presentations and websites. I want to be able to use clipart and special designs.

Can I use them if I find them on the internet?
I found a website that charges a fee to use designs. Can I (a) buy a subscription to use their designs, and (b) can I use an AC to do it?

Answers

Case Study #2: (1) Likely not, unless it explicitly says that it is allowed; (2) (a) you must first read the terms and conditions to ensure they are okay, but assuming they are, yes; (b) yes There are sites that allow free usage of some graphics (Creative Commons) and some that we have already approved as okay for purchase. Check with us if you get stuck.

Case Study #3: I want to purchase a one year subscription to a service that allows us to have music playing while customers are on hold.

Can I use my AC?

Answers

Case Study #3: (1) You must review the Ts & Cs first, but assuming they are fine, yes.

Security and Acquisition

Article 6.5.1 “Restrictions” of the Acquisition Card Policy, Procedures & Guidelines“: the card must not be used where contractual clauses or statements of work are required, such as for purchases that require security clearances or privacy protections, and purchases that involve creating new intellectual property.”

Therefore, Acquisition Cards cannot be used to purchase goods/services when security requirements apply.

*Note that privacy is considered a Security Requirement which requires the issuance of a Security Requirements Check List (SRCL).

When security requirements are identified, they must be included in the solicitation (in a competitive process) and/or in the contract in order to ensure that the selected contractor meets all the security requirements before he is awarded a contract. Once awarded the contract, the contractor must ensure compliance to those requirements for the entire contract period.

How do I determine if there are Security Requirements?

Generally, answering the questions appearing on the Security Requirements Check List (SRCL) should help to identify the presence of security requirements.

If the answer to any of the questions included in the SRCL is YES, most likely security requirements are associated with your procurement.

Better be safe than sorry!!

If uncertain that security requirements are associated with the goods/services you want to purchase, we recommend to contact your Regional Security Office for assistance.

Helpful links:

Regional Security Offices (RSO)

SRCL Form

Security in Contracting guide

The Security Requirements Check List (SRCL) form is used to identify all applicable security requirements. When completed, this form must be sent to your Regional Security Office for verification and signature. Once signed by Security, it must be sent to the procurement specialist with your Purchase Requisition (PReq).

Security and Acquisition Cards - Q&A

We plan on purchasing wireless keyboards and mouse, The vendor will be delivering them at the loading dock.

Question: Does the personnel performing the delivery need a Personnel Security Screening (security clearance)?

No. A Personnel Security Screening is for individuals who are working under a contract who will or may require access to Protected or Classified information or assets or to secure work sites. Standard Reliability Status screening is the basic screening when duties require access to government information and assets, and unescorted access to Operations Zones in government facilities. The AC can be used to purchase.

We plan on hiring a HR Consultant for help with the testing and corrections for a staffing process. A list of candidates including basic personal information and email addresses will be provided to the company.

Question: Are there security requirements applicable for these services?

Yes. When information about an identifiable individual is recorded in any form, it is considered personal information which means there may be privacy issues. Since privacy is considered a security requirement, the issuance of a Security Requirements Check List (SRCL) is required. Furthermore, specific privacy clauses may also need to be included in the contract. The Privacy Management Division should be consulted. Also, if information is provided electronically, IT related security issues may be applicable as well. The AC cannot be used because of applicable security requirements (privacy and IT).

We plan on contracting a company for the interior window cleaning of our section, twice a year. The interior window cleaning will only take 20 minutes and we have made arrangements with the commissionaires who will escort the cleaner at all time.

Question 1: Must the cleaning person have a security clearance ?

Question 2: Are there applicable security requirements that require a SRCL to be completed?

Answer 1: Although it is preferable, the person performing the window cleaning does not need a security clearance since escorted at all time by security.

Answer 2: Yes, a SRCL must be provided with the PReq since there are applicable security requirements (access to an operation zone).

The AC cannot be used because of applicable security requirements.