3. Agreements and contracts, secrecy and intellectual property rights

A technical service or product differs from contract research or research collaboration in that the research infrastructure does not carry out any research or development work in connection with the access.

Granting external users access to research infrastructure often requires not only providing the equipment itself, but also the staff, skills and peripheral materials needed to use it. When assessing the suitability of supplying a technical service or product, the research infrastructure must take into consideration whether the external user intends to use the service for research, development or other appropriate purposes.

Many research infrastructures require at a minimum that a contract or agreement is entered into for the services. The design and content of these contracts/agreements may vary depending on the nature and organisation of the research infrastructure. It is easier if there is a basic template to start from that covers the services that the research infrastructure offers. If research is included, separate contracts for contract research or agreements for research collaboration can be used to cover specific provisions concerning how to deal with matters that require change or development in connection with the research (see Sections 3.2 and 3.3).

Below are examples of what might be regulated in a contract or agreement for access to a technical service or product:

• General terms and conditions regarding access, liability, personal data protection, amendments, insurance, supervision of staff, safety regulations, health and safety in the work environment and a code of conduct.
• Definitions of terms.
• Fees and payment terms.
• Communication channels/contacts.
• Terms and conditions for technical assistance/operators.
• Terms and conditions for the handover and post-processing of results.
• Terms and conditions governing any generated IP.
• Scheduling and termination of assignments.
• Handling of secrecy and confidentiality.
• Terms and conditions governing breaches of contract.
• Terms and conditions covering property and materials, warranties and liability.
• Terms and conditions related to the employees affiliation.
• Force majeure clauses.
• Clauses concerning the applicable law and settlement of disputes.
• Terms governing any form of publication, including acknowledgements, etc., for published results.

It is also appropriate to have standard wordings for aspects of the agreement where supplementary terms may be applicable, or which are changed/replaced entirely if the service is also linked to a research assignment:

• IP rights, including who owns them, background information, and who owns the IP linked to the service performed or analytical methods and any development thereof.
• Commitments by the parties not to apply or interpret the contract in such a way as to constitute a breach by either party of EU state aid and competition law rules.

Variation in terminology – There is variation in the terminology used within different research infrastructures that may be due to traditions in different disciplines, for example. The most important thing is to be clear about what technical service or product is being offered.

Who should sign a contract or accept the terms? – Contracts and agreements are formally concluded by the host organisation of the research infrastructure and must be signed by a person who has been delegated this responsibility.

For more detailed information and references regarding granting access to a technical service or product, see Annex 3 – Technical service or product.

Contract research is research conducted on behalf of an external party. As mentioned above in Section 3.1, a research infrastructure at an HEI may provide a technical service or product. This may be provided with associated research assignments. This is either contract research or research collaboration (research collaboration is discussed below in Section 3.3).

When granting access via contract research, it is important to define which parts of the results accrue to the external user. Most HEIs and research institutes already have well-developed templates for contract research. You can also refer to the terms and conditions in standard contracts for access to technical products or services with added special terms⁵⁹

Such special terms that apply to contract research are usually the following:

• Description of the research to be conducted.
• Intellectual property rights (IPR), including who owns them, background information and who owns the IP associated with the assignment performed, i.e. the development of the service itself or the products or methods for the performance thereof. In some cases, participating staff may need to sign research approvals.
• Publication of research results and the research license.
  

The second variant of a technical service or product with associated research is when it is provided as part of a research collaboration. This means that research is conducted in collaboration with one or more companies/undertakings, HEIs and/or research institutes. The parties contribute resources jointly to the collaboration in the form of, for example, financial resources, materials and expertise⁶⁰. When a research infrastructure is involved in these collaborative projects, it is because there is a need in the research collaboration for services that can be delivered by a research infrastructure. Research collaborations are commonly funded in whole or in part by grants from central government funding bodies. There may be instances where it is difficult for research infrastructures to participate in a research collaboration, for example in EU projects where the project parties may not invoice each other. In such cases, it is important that the budget includes scope for the research infrastructure to receive sufficient compensation to recover its costs.

Research collaboration is usually co-financed by the participating parties who may have received grants from various government agencies, such as the Swedish Research Council. These grants often come with their own terms and conditions that must be observed.

In addition to the terms listed in Section 3.1 for the provision of technical services or products, it is common for research collaboration contracts and agreements to include the following:

• A description of the research to be conducted.
• Who owns the results and who has the right to publish them.
• IPR, including who owns them. Background information and who owns the IP associated with the assignment performed, i.e. the development of the service itself or the products or methods for the performance thereof. In some cases, participating staff may need to sign research approvals.
• Publication of research results and the research license.
• A description of the available resources and how the research has been financed.
  

This section deals specifically with confidentiality agreements or confidentiality undertakings for public-sector HEIs. Confidentiality refers not only to non-disclosure of documents, but also the duty of confidentiality. For more information on questions concerning public access and secrecy, refer to Annex 4 – A memorandum on public access to information and secrecy.

Government agencies cannot contract out of what is laid down in the Public Access to Information and Secrecy Act (referred to below as OSL, the Swedish acronym for this Act). Employees of government agencies are covered by a duty of confidentiality under the OSL without first needing to sign any special agreement to this effect.

In principle, there are no obstacles to applying confidentiality linked to the external use of a research infrastructure. It is important that everyone involved in the work understands when data is protected and when it is not, as well as how procedures for processing potentially classified (secret) information or documents work. It is also important to understand when something becomes an official document. Mixing private correspondence with information relating to an activity at a government agency generally leads to the entire correspondence being made public. An employee of a government agency cannot bypass the provisions in the OSL by using private e-mail, communication channels such as WhatsApp and Signal, or otherwise circumventing the agency’s communication channels. If someone requests information and initiates legal action, it is irrelevant how the information has been transmitted.

There are staff who are not included in the contracts. In general, information that is classified should not be shared with these staff unless there is a specific reason for doing so. The most common exceptions for such staff are:

Administrative staff – These staff are required to perform tasks related to the organisation’s contractual agreements, including managing confidentiality. For example, it may involve preparing a matter for decision.

Management staff – Line managers or equivalent may have access to correspondence and information related to contracts, for example, when attesting the above decisions.

In general, the following applies:

The OSL contains provisions on confidentiality in contract activities for individuals concerning information that refers to testing, determinations of qualities or quantities, or valuation; scientific, technical, financial or statistical investigations or other assignments that the government agency performs on behalf of an individual. This confidentiality covers contract research carried out by a university or a university college on behalf of an individual. Confidentiality only applies if it must be assumed that the contract has been awarded on the condition that the information is not disclosed.

This condition is fulfilled if the client has requested that confidentiality shall apply. However, an explicit request for confidentiality by the client is not always necessary.

For confidentiality to apply however, the information must be of such a nature that the absence of confidentiality protection would be considered so significant for the client that they would have refrained from contracting with the university without such protection. Confidentiality enables HEIs to enter into contract research agreements with individual clients, meaning that the data in question may not be disclosed pursuant to the OSL.

There are confidentiality provisions that are sufficient to cover all the forms of interaction discussed in this chapter and in the chapter before it:

Supply of technical service or product. Confidentiality applies to information concerning the execution of a scientific or technical investigation commissioned by a government agency on behalf of the public, or to the results of such an investigation, if it can be assumed that the public would suffer damage if the information were disclosed.

Contract research. Confidentiality applies to information related to testing, determinations of qualities or quantities, or valuation; scientific, technical, economic or statistical investigation or other such assignment performed by the government agency on behalf of an individual, if it must be assumed that the contract has been awarded on the condition that the information is not disclosed.

Research collaboration. Confidentiality applies in the HEIs for information about an individual’s business or operational circumstances, inventions or research results that have been submitted or come to light in the research conducted, pursuant to an agreement, in collaboration with an individual, if it must be assumed that the individual has participated in collaboration on the condition that the information is not disclosed.

The object of the confidentiality is information on the execution of a scientific or technical investigated commissioned by a government agency on behalf of the public as well as the results of such an investigation. Information on the execution of an investigation may refer to, for example, the technology or method used, which may also include information on the consumables used if this can be considered to disclose information about the methods used.

Since government agencies and HEIs cannot contract out of the OSL provisions, there must always be a valid justification supported by a confidentiality provision in the OSL. This is because confidentiality can always be reviewed in a court of law. In addition, in principle confidentiality is valid for a limited period; usually 10 years for HEIs.

Information about an individual’s (for example, an undertaking’s) business or operational circumstances, inventions or research results is protected by a number of provisions on confidentiality in the OSL and in the Act on Trade Secrets (2018:558). In some instances, external users require that a non-disclosure agreement be drawn up at the initial meeting. However, such agreements can never go beyond what the OSL permits for HEIs.

This section is primarily relevant for public-sector higher education institutions. The sale or licensing of IP can be part of the business model of an institute-based research infrastructure and assurance that the institute’s assignment can be completed. They generally have detailed contracts covering such aspects.

Often, generated IP is not a central issue for offers of technical services or products, as research is not carried out as part of such access. IP may be relevant to contract research and research collaboration, in which case it is important to clarify whether or not the staff of the research infrastructure are covered by the teacher exemption. The application and interpretation of the teacher exemption varies at HEIs, as some questions are not clearly regulated in the law and have not been determined by precedent in a court.

Teacher exemption

The teacher exemption is set out in the Act (1949:345) on the Right to Employees’ Inventions (below ‘LAU’, the Swedish acronym of this Act)⁶¹. Taking a broader view of the term, it includes more exemptions, namely exemptions in relation to intangible assets other than patentable inventions. According to LAU, employers have the right to retain exclusive rights to patentable inventions created by an employee as part of their work. The teacher exemption according to LAU is an exemption that gives teaching staff at Swedish HEIs personal rights to their (patentable) inventions. What staff and which types of intellectual property/rights are covered by the teacher exemption is interpreted differently by different HEIs and is usually regulated in the HEI’s IP policy. Furthermore, the scope and applicability of the teacher exemption is likely to be dependent on other rules in the legal system, in particular labour law rules concerning the employer’s responsibilities and rights in relation to their employees. Therefore, there is variation between HEIs in the scope of how the teacher exemption is applied. In most cases, teacher exemptions only apply to teaching or research staff, but technical and administrative staff (TA staff) may also be covered by the teacher exemption.

It is important that assignments from external users can be carried out without employees being able to individually invoke rights to the IP generated. Furthermore, employees often have several roles within the same organisation, since an employee can be a researcher in one role and technical/administrative staff in another.

If this is not regulated consistently, it can lead to additional work and confusion in relation to external users.

Managing IP matters – Contracts that concern IP and IPR and which deviate from the given templates must always be reviewed by the government agency’s lawyers or staff designated as responsible for this. For directors or staff of a research infrastructure, confidentiality must be maintained around potential IP, and everyone involved must have an understanding of the patenting process, especially when new IP is generated.

Questions about IP and IPR are dealt with in more detail in
Annex 5 – Problems in the area of intellectual property and making research infrastructures accessible at Swedish HEIs.