Review of the Treasury Board Policy on Title to Intellectual Property (IP) Arising Under Crown Procurement Contracts: Final Report

Final Report

February 5, 2021

Table of Contents

Table of figures

Table of tables

Acronyms and abbreviations

ADMCST
Assistant Deputy Minister Committee on Science and Technology
AI
Artificial Intelligence
CCG
Canadian Coast Guard
CoP
Community of Practice
CSA
Canadian Space Agency
CSC
Correctional Services Canada
CSPS
Canada School for Public Service
DFO
Department of Fisheries and Oceans
DND
Department of National Defence
ECCC
Environment and Climate Change Canada
ESDC
Employment and Social Development Canada
FAA
Financial Administration Act
FSTP
Federal Science and Technology Policy Directorate
GAC
Global Affairs Canada
ICE
Information, Communication and Education
IP
Intellectual Property
IPR
Intellectual Property Rights
ISED
Innovation, Science and Economic Development
NRCan
Natural Resources Canada
NRC
National Research Council
PSPC
Public Services and Procurement Canada
SSC
Shared Services Canada
TBACC
Treasury Board Advisory Committee on Contracts
TBS
Treasury Board Secretariat
TD
Technical Data

GlossaryFootnote 1

Intellectual Property (IP)
Means for the purposes of this framework, any rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields including all intellectual creation legally protected through patents, copyright, industrial design, integrated circuit topography, and plant breeders' rights, or subject to protection under the law as trade secrets and confidential information. Intellectual Property does not include prototypes or any other physical embodiments of intellectual creation when such physical embodiments are deliverables of a Crown Procurement Contract.
Foreground IP
Means IP first conceived, developed, produced, or reduced to practice as part of the work under a Crown Procurement Contract.
Background IP
Means all Intellectual Property that is not Foreground IP.
Commercial exploitation
Means any use, modification, transformation and/or dissemination of the Foreground IP that generates, or is intended to generate, revenues.
Crown Procurement Contract
Means a 'contract' as defined in the Treasury Board Contracting Policy
Licence
A licence enables the owner of the IP to retain ownership of those rights and exercise a varying degree of control over its use by the licensee.Footnote 2

Executive summary

Innovation, Science and Economic Development Canada (ISED) plays a role in sponsoring, overseeing, and administering the Treasury Board Policy on Title to IP Arising under Crown Procurement Contracts (the Policy) and undertaking activities assigned to it under this Policy. The Policy addresses the ownership and licensing of intellectual property (IP) arising during a Crown procurement contract. The Policy's objective is to enhance Canada's economic growth by increasing the commercialization of IP developed by a contractor during a Crown procurement contract.

The Federal Science and Technology Policy (FSTP) Directorate of ISED contracted TDV Global to conduct a review of the Policy for the period April 1, 2015 to March 31, 2020 in accordance with the requirement, under section 6.5.3 of the Treasury Board Policy on Title to IP Arising under Crown Procurement Contracts. This review's purpose was to examine the Policy's relevance and effectiveness and identify lessons learned and recommendations.

The review examined the Policy relevance, effectiveness and lessons learned. Under relevance, the review found that there is a continued need for the Policy. All stakeholders find the Policy relevant in terms of aligning with government priorities for innovation and economic growth, as well as internal processes providing clarity to decision-makers on IP ownership in government contracts.

The policy's underlying rationale is that commercial exploitation of IP is best done by the private sector and contributes to Canada's socio-economic goals, including economic growth and jobs. This rationale aligns well with federal government priorities and objectives. The review finds that the Policy brings added value to the government procurement process.

Regarding effectiveness, there were six outcomes identified in the Policy logic model that were assessed. Progress in achieving each of these outcomes was observed in all areas, and in some cases, areas for improvement were noted.

Regarding best practices, there is evidence of departments developing departmental approaches to assist with their implementation of the Policy, such as establishing an IP Office, or IP Centre of Excellence, that provides advice, tools and templates, guidance on many IP issues. Other possible best practices included briefings to senior management on IP, and the Open Data Portal for reporting.

Regarding areas for improvement, the most cited area is the need for greater clarity through new and revised Information, Communication and Education (ICE) products. This is partly due to the complex and nuanced nature of procurement and developments in the operating environment and the increasing role of cloud services, Artificial Intelligence (AI), Open Data, Open Science, research collaborations, and other matters.

Conclusions and recommendations

Regarding relevance, there is still an ongoing need for the Policy; it remains relevant for government priorities and addresses a need of those entities involved in innovation or with background IP. There does, however, need to be continuing efforts to keep the government procurement and contracting professions and related management informed and trained on the rationale for the Policy. There is also a need for dialogue with interested industry partners on the Policy and its implementation so that industry needs are met while also balancing the Government of Canada's needs for meeting its own socio-economic and security agenda.

To that end, the review:

  1. Recommends that as part of the next review/evaluation of the Policy ISED/FSTP strengthen the rationale for the Policy by examining the extent to which IP arising from government contracts is commercially exploited. A related review/evaluation issue could also be the extent to which the Crown makes use of the IP that it claims ownership of.
  2. Recommends that ISED/FSTP consider any best practices or lessons learned from the process and outputs related to the development of IP related policies and guidance in Canada and other jurisdictions, such as Australia and the United States.

Regarding effectiveness, the Policy has been effective. During the period under review, there was a trend towards more contracts expecting to have IP, increasing contractor-owned IP, and increasing commercially exploitable IP. There are variances in the effectiveness of approaches across departments. In general, those departments where there is a high volume of procurement that involves IP are more likely to have put in place supportive structures and processes. The review identified some best practice examples, such as IP Offices, intranets, guidance, ICE tools, and templates. There are areas for improvement related to both Policy awareness and education and guidance that accommodate the range of IP scenarios, such as updating existing guidance to address modern-day procurement issues and reviewing the training course provided by Canada School of Public Service (CSPS).

To that end, the review:

  1. Recommends that ISED/FSTP review the IP Training Course offered by the CSPS and other supporting material to ensure that the Policy rationale and the monitoring and annual reporting responsibilities are fully addressed. ISED/FSTP may wish to consult with other departments to support this work.
  2. As it relates to monitoring and annual reporting, it is recommended that ISED/FSTP include all contracts above $10,000 in Title Policy annual reporting, and that considerations be made to ensure comparability of data sets across time. Footnote 3 ISED/FSTP may wish to consult with other departments to support this work.

Regarding Lessons learned, there is a depth of experience within departments and agencies in terms of best practices and lessons learned that is not being shared or disseminated in any structured manner. There are guides, tools, training and other materials developed by departments that could benefit other departments/agencies, assuming departments are willing to share their own products.

Related to the above, there is an ongoing demand for new and revised ICE products to bring greater clarity to the implementation of the Policy, as well as to address the demand for information on contemporary procurement issues such as Cloud services, AI, software, and government initiatives such as Open Data and Open Science.

There have been developments during the last five years that may require changes in the Policy, or in supporting materials, such as the Policy Guide. Potential areas for improvement in the Policy, such as clarifying the role of PSPC related to data, reporting requirements on commercialization, linkages with new government initiatives such as Open Science and Open Data, and how to keep pace with a modernized procurement environment (e.g., AI, Cloud Services, etc.).

To that end, the review:

  1. Recommends that ISED/FSTP explore ways to share information and materials that have been developed by departments/agencies, and where needed, develop new and revised ICE products to bring further clarity to the Policy and guidance on its implementation by consulting with the broader government community. Departments should also consult with industry stakeholders.
  2. Recommends that ISED/FSTP consider potential areas for improvement in the Policy and Guidance, such as the clarifying the role of PSPC related to data, reporting requirements on commercialization, updating linkages with new government initiatives such as Open Science and Open Data, and how to keep pace with a modernized procurement environment (e.g., AI, Cloud Services, etc.).

1.0 Introduction

1.1 Background

As per the Department of Industry Act, the powers, duties, and functions of the Minister extend to and include all matters relating to patents, copyrights, trademarks, industrial designs, and integrated circuit topographies. The Treasury Board Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts (the Policy) addresses the ownership and licensing of intellectual property (IP) arising during a Crown procurement contract.

The revised Policy took effect on April 1, 2015. The Policy's objective is to enhance Canada's economic growth by increasing the commercialization of IP developed by a contractor during a Crown procurement contract. Presumably, this would be aided by granting default ownership of the IP to the contractor, subject to Crown exceptions set out in the Policy. The objective of Crown procurement contracts is to acquire goods and services and carry out construction in a manner that enhances access, competition, and fairness. It results in the best value or, if appropriate, the optimal balance of overall benefits to the Crown and the Canadian people.

1.2 Purpose and scope

Innovation, Science and Economic Development Canada (ISED) plays a role in sponsoring, overseeing, and administering the Treasury Board Policy on Title to IP Arising under Crown Procurement Contracts and undertaking activities assigned to it under this Policy. The Federal Science and Technology Policy (FSTP) Directorate of ISED contracted TDV Global to conduct a review of the Policy for the period April 1, 2015 to March 31, 2020 in accordance with the requirement, under section 6.5.3 of the Treasury Board Policy on Title to IP Arising under Crown Procurement Contracts.

This review's purpose was to examine the Policy's relevance and effectiveness and identify lessons learned and recommendations. The Review Framework was based on the following questions. A further breakdown of the review questions, sub-questions, and alignment to the lines of evidence is found in Annex A: Review framework.

Relevance

  1. Is there a continued need for the Policy?
    1. Who are the stakeholders, and are their needs being addressed by the Policy?
    2. Are there any gaps in the Policy regarding stakeholder needs?
  2. Is the Policy aligned with government priorities?
  3. Does the Policy add value to the government procurement process?

Effectiveness

  1. To what extent have the intended outcomes of the Policy been achieved?
    1. To what extent are roles, responsibilities, and accountability for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies?
    2. To what extent do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts?
    3. To what extent have departments and agencies established an effective approach for the implementation of the Policy?
    4. To what extent is that approach monitored and reported?
    5. To what extent are Contractors aware of IP rights as per the Policy?
    6. To what extent are opportunities to establish IP rights used by the contractor or crown?
  2. What factors facilitate or hinder the achievement of outcomes?
    1. How does the administrative structure for the Policy facilitate or hinder achievement of outcomes?
  3. Have there been any unintended consequences (positive or negative) as a result of the Policy?

Lessons learned

  1. What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy?
  2. What aspects of the Policy can be improved upon?

2.0 Policy profile

The Policy sets out the following roles and responsibilities. ISED is responsible for sharing the summary report with the Assistant Deputy Minister Committee on Science and Technology (ADMCST), establishing a review framework, and initiating said Policy review. In addition to the roles specified in the policy, ISED plays a role in supporting implementation in departments and agencies by producing and disseminating information and training materials on the Policy and responding to ad hoc requests for advice and information.

Specifically, the Policy (Articles 6.5.1 and 6.5.2) states that ISED is responsible for:

  • summarizing the annual statistical report on ownership of IP generated under a Crown procurement contract and its potential "commercial exploitation", identifying any TB exemptions claimed by departments and notifying the Treasury Board Secretariat (TBS), in order for TBS to verify if such exemptions were actually granted;
  • sharing the findings from the aforementioned annual statistical report with members of the Assistant Deputy Minister Committee on Science and Technology (ADMCST).

Departments and agencies are responsible for establishing an effective approach for implementing the Policy, adhering to the Policy's requirements, and monitoring and reporting compliance with the Policy. To this end, the Treasury Board Contracting Policy requires quarterly reporting of procurement contracts and amendments over $10,000. The Guidelines on the Proactive Disclosure of Contracts stipulate that as of 2017, departments and agencies must report this contracting data on the Open Government Portal.Footnote 4 Prior to 2017, PSPC was responsible for extracting departmental data from the contracting system and providing reports to ISED.

TBS is responsible for verifying whether TB (Treasury Board) exemptions were granted and assisting ISED in following up with departments and agencies in cases where exemptions were not granted.

2.1 Logic model for the policy

The Policy identifies the following specific expected results:

  • When the Contractor generates IP under a Crown Procurement Contract, they have an opportunity to own and commercialize the Foreground IP.Footnote 5
  • When the Crown's intended use of the Foreground IP requires ownership of the IP, the Crown has the opportunity to take sole ownership, either through Crown exceptions or a Treasury Board Exemption.
  • When the Crown's intended use of the IP can be met through licensing arrangements, it has the opportunity to seek the needed licence(s).
  • Responsible Departments have improved clarity in IP ownership decision-making.
  • Roles, responsibilities, and accountabilities for the management of IP generated under a Crown Procurement Contract are clearly defined and understood by all departments.

These results are at the core of the Policy's results framework and have been integrated into a logic model to capture the entire scope of the Policy (Annex B).

Given the policy's horizontal nature, the logic model distinguishes the Government of Canada stakeholders' specific activities and outputs involved with implementing and monitoring the Policy. Specifically, activities and outputs have been categorized by ISED, TBS and PSPC, (labelled as "Administration"), and Departments and Agencies (grouped as "Implementation"). Departments and agencies have the principal responsibility to implement effective approaches for the Policy, with ISED and TBS providing overall monitoring and reporting functions as well as information, guidance, training, and advice.

The following are the outputs and activities of each stakeholder group. It is noted that there are common activities, such as monitoring and reporting, across all the stakeholder groups. The role of PSPC, as detailed in the Policy, has changed. In 2017, the Guidelines on the Proactive Disclosure of Contracts replaced the Datacap or Purchasing Activity Report during the review period, which was administered by PSPC with proactive disclosure by the department or agency. These proactive disclosure datasets are now found on the open government portal managed by TBS.

ISED
Activities Outputs
  • Development of training, communication, and guidance materials
  • Response to ad hoc requests for advice/presentations
  • Data analysis and reporting
  • Implementation Guide
  • Training material
  • Communication material
  • Advice, Presentations
  • Reports and presentations, principally to the ADM Committee on Science and Technology (ADMCST)
TBS (and formerly PSPC)
Activities Outputs
  • Formerly reporting (PSPC), now Open Government Portal Footnote 6
  • Reporting guidance (TBS)
  • Verification of the use of TB exemptions (TBS)
  • Reports principally to the GC procurement community via GC Pedia, formerly to the TB Advisory Committee on Contracts (TBACC)
Departments and Agencies
Activities Outputs
  • Documentation of process and decisions
  • Orientation and training of personnel
  • Data capture, quality assurance and reporting
  • Documented decisions
  • Training and information material
  • Proactive Disclosure Reports

The Policy's activities and outputs contribute directly to specific immediate outcomes and indirectly to longer-term intermediate and long-term outcomes.

As per the logic model in Annex B, the long-term outcome of the Policy is:

  • IP developed by a contractor in the course of a Crown Procurement Contract is used by the Crown to fulfill its requirements and/or retained by the Contractor for potential commercial use.

The intermediate outcome is:

  • Opportunities to decide/establish IP rights are available and used: i) Contractor owned, ii) Crown owned through exceptions or the Treasury Board Exemption, iii) licencing arrangements.

The immediate outcomes are:

  • Roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract are clearly defined and understood.
  • Departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts.
  • Departments and agencies have established an effective approach for implementing the Policy, which is effectively monitored and reported.
  • Contractors are aware of IP rights as per the Policy.

2.2 Partners and stakeholders

TBS is a key Government of Canada stakeholder given that this is a whole of government policy. TBS is responsible for verifying if an exemption to the Policy has been requested and approved by the Treasury Board. During the period under review, PSPC also played a role in data capture and analysis and is therefore still considered an internal stakeholder.

Other Government of Canada stakeholders are all responsible departments and agenciesFootnote 7 that implement the Policy. External stakeholders are contractors to Crown procurement contracts.

2.3 Project management

The Project Authority for the review was the Director, Federal Science and Technology Policy (FSTP), ISED. The Project Authority worked with the contractor to coordinate and implement the review activities. The Project Authority coordinated with the ISED Audit and Evaluation Branch (AEB), who were engaged in reviewing project deliverables. TBS and PSPC were consulted throughout the development of this report.

3.0 Methodology and limitations

The initial analysis involved coding the evidence to the various review questions, sub-questions, and indicators by line of evidence. The second tier of analysis was to look for common themes or issues for each question, sub-question, indicator, upon which findings were developed. These were captured in an internal technical report for each line of evidence. The third tier of analysis involved consolidating the findings from all the lines of evidence in an Evidence Matrix and developing summary findings, conclusions, and recommendations. This was presented to the Project Authority, and feedback was used in the development of this report.

Interviews

A total of 28 people were interviewed across 11 government departments and 2 industry associations. This included 8 PSPC participants in a focus group. These numbers met with the interview planning range of 17-23 persons across 13 departments and 3 industry associations. The interviewee list and interview guides are found in Annex C.

Interviewee Category Low
(n =)
High
(n =)
Actual
Government of Canada (Internal)

Policy Administrators

ISED

2 3 2

TBS

1 2 1

Policy Implementors

PSPCFootnote *

2 4 9

Canadian Space Agency

1 1 1

Correctional Services Canada

1 1 1

Department of National Defense

1 2 1

Department of Fisheries and Oceans

1 1 0

Employment and Social Development Canada

1 1 2

Environment and Climate Change Canada

1 1 2

Global Affairs Canada

1 1 0

National Research Council

1 1 1

Natural Resources Canada

1 1 1

Shared Services Canada

1 1 2
Sub-total 15 20 23
External

Industry Associations

2 3 5
Sub-total 2 3 5
Total 17 23 28

Documents

A total of 35 documents were reviewed consisting of the Policy, Implementation Guide, Purchase Activity Reports (i.e., Datacap) for each of the years under review, annual presentations/reports provided by ISED, and IP policy related materials submitted by some departments. The list of documents reviewed is found in Annex D.

Online Survey

The online survey was sent to 593 individuals selected from government directories related to procurement and contracting and was kept online for a period of 5 weeks. There were 140 responses (approximately 24% response rate) across 29 departments. A further 25 respondents were screened out of further analysis based on their lack of familiarity with the Policy, leaving a net total of 115 respondents. Both quantitative and qualitative responses were collected. Survey questions can be found in Annex E.

Comparison study

The comparison study was conducted as per the protocol (see Annex F) and included 8 jurisdictions: Australia, United Kingdom, United States, British Columbia, Alberta, Ontario, Quebec, and Newfoundland and Labrador. A total of 30 documents and websites were reviewed (see Annex D)

Limitations and mitigations

In general, the data collection went as planned with no significant limitations except for the international comparison. Consistent keyword searches were completed for all jurisdictions, but in six out of the eight jurisdictions included in the international comparison scan, no findings were identified due to a lack of new, current, or relevant information available on government and third-party websites that were specific to IP in government procurement contracts.

Regarding the survey, survey respondents were asked to assess the level of achievement for each of the six Policy outcomes (i.e., "In your opinion, to what extent have the following Policy outcomes been achieved?"). In the case of three of the outcomes, there was a very high percentage (between 30% and 46%) of respondents who answered, "Don't Know". In these cases, and in the in those cases where the "Don't Know" responses were greater than 5%, the percentages are recalculated with the "Don't Know" responses removed. The revised 'n' is presented in the related analysis. This is justified in that all information is first presented, in the spirit of transparency, and secondly, the analysis with "Don't Know" responses removed provides a more accurate assessment of informed perception regarding each outcome question.

Also, concerning the survey, the quantitative responses to questions that were prefaced with "In your opinion, to what extent…" were captured along a Likert scale as follows:

Text version

Likert Scale

  1. Not at all
  2. To a minor extent
  3. Somewhat
  4. Mostly
  5. Completely
  6. Don't Know

Our analysis was to group the response under somewhat, mostly, completely as positive indications of "to what extent".

4.0 Findings related to relevance

4.1 Is there a continued need for the Policy? (R1)

There are two sub-questions related to answering this review question. They are:

  1. Who are the stakeholders, and are their needs being addressed by the Policy?
  2. Are there any gaps in the Policy regarding stakeholder needs?

Summary Finding:

There is a continued need for the Policy. All stakeholders find the Policy relevant in terms of aligning with government priorities for innovation and economic growth, as well as internal processes providing clarity to decision-makers on IP ownership in government contracts. Quantitively, the Policy is relevant for the government as almost 1 in every 5 contracts (18%) has the potential to generate IP. Externally, the Policy is most relevant to a select group of industry stakeholders who work in research and development and innovation and are often found in the defence and security sector (although not exclusively). That proportion may be quite small, as, during the review period, only 1.3% of all contracts were identified as having IP with the potential for commercial exploitation. Overall, there is a trend towards more contracts being expected to generate IP, increasing contractor-owned IP, and somewhat increasing the anticipated amount of commercially exploitable IP, all of which support the continued need for the Policy.

4.1.i) Who are the stakeholders, and are their needs being addressed by the Policy?

The Title Policy applies to all Departments and Agencies as defined in Schedules I, I.1 and II of the Financial Administration Act, as well as any Commission that is established as to the Inquires Act and that is designated as a Department through an Order in Council. There are exceptions, such as the Canada Revenue Agency. The Policy identified specific roles for Industry Canada (now Innovation, Science and Economic Development Canada), Treasury Board Secretariat, PWGSC (now Public Services and Procurement Canada), and Deputy Heads of Departments for the implementation of the Policy.

Based on document review and interviews, government and industry stakeholders are categorized with increasing specificity as shown in Figure 1 below. For example, while the Policy stakeholders may be Department and Agencies as listed in the FAA Schedules, and specifically Deputy Ministers as mentioned in the Policy. It is clear from the review's planning stageFootnote 8 that procurement and contract officers, as well as project and technical authorities, are the real "users" of the Policy. Similarly, while the broad term "Industry" is often used, the Policy is only relevant when IP is expected to be created, which is the case in approximately 18% of all contracts and represents a sub-set of "Industry".

Figure 1: Policy stakeholders
Text version

The title for this figure is  policy stakeholders. There are two circles that list stakeholders, one for government and one for industry. The government circle has increasingly lighter shades of purple to illustrate different stakeholders in the government context. The government stakeholders include the government/Crown, departments and agencies, Deputy Ministers and Senior Management, procurement , policy groups, IP experts and procurement/contract officers, technical authorities, project managers. The second circle has increasingly darker shades of green starting with industry, then vendors, suppliers and contractors and finally firms with IP with potential for commercial exploitation (" 1.3%")

Regarding the need of stakeholders, interviews indicated that all stakeholders need to have clarity on the ownership of IP in government contracts, both policy and guidance (the importance of the Policy in providing clarity was also identified in the survey responses regarding the question on value-added of the Policy, presented in Section 4.3). The Policy states that IP ownership should default to the contractor as they are better positioned to exploit IP commercially. This was supported by a document review that articulates the Policy's rationale on the position that commercial exploitation of IP is best undertaken by the private sector and contributes to economic growth and job creation. Nonetheless, interviews also indicated a recognition that the Crown has specific needs and interests in owning IP that must be balanced with the (potential) commercial need. Crown needs are varied and can be often defined on a case-by-base basis, especially when involving complex defence and security sector procurements and long-term service agreements.

Quantitively, the Policy may be relevant for a relatively small proportion of contractors. During the period under review, 18% of all contracts were determined to potentially generate IP and 1.3% were considered to have IP with the potential for commercial exploitation.Footnote 9

4.1.ii) Are there any gaps in the Policy regarding stakeholders or stakeholder needs?

No clear gaps in the Policy were identified. Given that the Policy is limited to a portion of procurement policy and is not intended to be a whole-of-government IP Policy does not preclude a potential need for a broader, all-inclusive IP Policy that covers the government approach to IP or covers any perceived gaps in the existing IP policy suite (e.g., research grants and contributions, etc.). This was not considered to be a gap in the Policy per se, but rather a possible unanswered need across government.

Other comments referred more directly to improving guidance and addressing information needs. Interviews, survey comments, and the comparison study all noted the increasing importance of technical data, software, and Cloud services, including new government initiatives (e.g., Open Science, Open Data). These changes in the government procurement operating environment have resulted in a demand for new guidance in those areas. Consultations could lead to revisions to the current guidance.

Such a need for guidance may be partly evidenced by defence industry associations working with the government to develop the Principles of IP Management in Defence and Marine Procurement. This guidance was created with several departments (i.e., DND, TBS, ISED and Canadian Coast Guard) and may not necessarily be applicable across all government sectors.

The international scan noted that some jurisdictions have modernized or revised their approach to intellectual property rights (IPR) in government contracts, often in close consultation with the private sector. In Australia and the United States, the IPR focus was principally on technical data and software. In Australia, a shift in perspective on how to define background and foreground IP was noted. In the United States, an Industry-Government Panel was established to review IPR in government contracting with respect to technical data, which resulted in new federal and defence regulations that further defined IPR (see Lessons Learned for more details). These limited examples indicate that the field of IPR in government contracts is evolving and that outdated policies may need to be adjusted to better meet industry needs and government priorities.

4.2 Is the Policy aligned with government priorities? (R2)

Summary Finding:

The policy's underlying rationale is that commercial exploitation of IP is best done by the private sector and contributes to Canada's socio-economic goals, including economic growth and jobs. This rationale aligns well with federal government priorities and objectives. This is widely recognized in the interviews, document review and survey. In the survey, 98% of respondents indicated that the Policy aligned with government priorities (somewhat, mostly, completely).

The authority for the Policy is derived from the Financial Administration Act (FAA).Footnote 10 The Policy is integrated into various government departments' procurement and contracting processes, including being listed as references on government procurement portals (e.g., PSPC's Buy and Sell, etc.), and integrated into the PSPC SACC Manual (clauses 4006 and 4007).Footnote 11

The Policy and related materials clearly articulate that the development, protection, and commercialization of IP are essential components related to government priorities of advancing a broader Canadian socio-economic agenda, including economic growth and jobs.

According to the survey, most respondents (n=115) (78%) believed that the Policy "somewhat" (27%), "mostly" (43%) or "completely" (8%) aligned with federal government priorities. Some (21%) of the respondents did not know. Removing the "Don't Know" responses as a more accurate reflection of informed opinion, 98% of respondents (n= 91) who had an opinion indicated that the Policy aligned "somewhat" (34%), "mostly" (54%) or "completely" (10%) to federal government priorities.

Figure 2: In your opinion, to what extent is the Policy aligned with federal government priorities?

Text version
Likert Scale Percentage of Respondents

Not at all

0%

To a minor extent

2%

Somewhat

34%

Mostly

54%

Completely

10%

4.3 Does the Policy add value to the government procurement process? (R3)

Summary Finding:

All relevant lines of evidence support the finding that the Policy brings added value to the government procurement process, by providing clarity for decision making on IP ownership in government contracts.

All relevant lines of evidence support the finding that the Policy brings added value to the government procurement process. Interviews and survey comments both strongly indicated that the Policy and related guidance provide clarity for decision making on IP ownership in government contracts.

Interviewees identified the value-added of the Policy and the guidance as including the clarity it provides regarding a framework for decision-making and aided by being contained in a single Policy and supporting guidance. Another value-added component identified in interviews was that the Policy is "mainstreamed" into procurement processes (e.g., mandatory fields in the SAP-based system, SACC contract clauses, etc.), ensuring IP is considered before and during contract award and documented in bid documents and contracts.

According to external stakeholder interviews, there is value in having IP ownership default to the contractor. As the actual contracting process is a mechanistic, formal process (including the contracting clauses), there is a need for effective dialogue and consultation approaches, especially for complex procurements.

Responses were collected from the survey question, "In your opinion, what would be the results/impact on IP ownership for federal procurement contracts if there was no Policy?" Almost all comments reflected the position that having no Policy would have negative consequences for the government and Canada. The Policy provides procurement practitioners and departments with consistent advice. Without such clarity, IP ownership would either not be considered, or according to most respondents, ownership would default to the government. Potential negative results from not having a Policy most often cited by survey respondents and interviews were delays in procurement as each case must be handled individually; increased risk for litigation or actual litigation (and therefore increased costs); and overall lack of clarity and consistency.

The quantitative responses to the question "In your opinion, to what extent does the Policy bring added value to the government procurement process?" support the summary finding. Most respondents (78%) believe that the Policy "somewhat" (29%), "mostly" (43%) or "completely" (6%) brings added value to the government procurement process, with "Don't Know" responses at 12% (n=115). Removing the "Don't Know" responses as a more accurate reflection of informed opinion, a vast majority of the survey respondents who answered the question (90%) indicated that Policy brings value-added (somewhat, mostly, completely) (n=101).

Figure 3: In your opinion, to what extent does the Policy bring added value to the government procurement process?

Text version
Likert Scale Percentage of Respondents

Not at all

3%

To a minor extent

8%

Somewhat

33%

Mostly

50%

Completely

7%

5.0 Findings related to effectiveness

5.1 To what extent have the intended outcomes of the Policy been achieved? (PE1)

This question was broken down into sub-questions aligned to each of the outcomes as per the Logic Model in Annex B, namely:

  1. To what extent are roles, responsibilities, and accountability for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies?
  2. To what extent do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts?
  3. To what extent have departments and agencies established an effective approach for the implementation of the Policy?
  4. To what extent is that approach monitored and reported?
  5. To what extent are Contractors aware of IP rights as per the Policy?
  6. To what extent are opportunities to establish IP rights used by the contractor or crown?

The summary findings for the question are captured in the following table. There is demonstrated progress in achieving all outcomes that could be assessed, noting that there are also some areas for improvement.

Table 1: Summary of achievement of outcomes
Outcome Assessment

PE.1.1 To what extent are roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies?

Progress in achieving this outcome. For example, the Policy is clear on role definitions and responsibilities, and the Policy is mainstreamed into current procurement system.

PE 1.2 To what extent do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts?

Progress in achieving this outcome, but there are opportunities for improvement. For example, the Policy and guidance have improved clarity, but there is an ongoing need for Information, Communication and Education products for Policy users.

PE1.3 To what extent have departments and agencies established an effective approach for the implementation of the Policy?

Progress in achieving this outcome, but unable to determine the extent. For example, some departments have developed policies, tools, guidance, and intranet sites to support implementation.

PE 1.4 To what extent is the implementation of the Policy being monitored and reported?

Progress in achieving this outcome, but there are opportunities for improvement. For example, there is data available on the Open Data Portal, but the purpose and use of reporting information could be clarified.

PE 1.5 To what extent are Contractors aware of IP rights as per the Policy?

Unable to assess the extent that this Outcome is achieved given limited evidence collected.

PE1.6 To what extent are opportunities to establish IP rights used by the contractor or crown?

Progress in achieving this outcome. Intellectual Property Rights (IPRs) are being established in Crown contracts, for both the Crown and Contractors.

Figure 4 below presents the survey responses to the questions related to the extent that intended outcomes were achieved. The left vertical axis shows the percentage of respondents who responded positively (somewhat, mostly, or completely) to the extent outcomes are achieved (with the "Don't Know" response removed from the calculations). For example, 83% of the informed respondents indicated that their department had "somewhat", "mostly" or "completely" clearly defined roles for implementation of the Policy (Outcome PE 1.3).

The right vertical axis of the graph, with data shown as the red line, is the number of survey respondents who selected "Don't Know", which may indicate where there is a lack of awareness for specific Policy areas. There were relatively high levels (over 25%) of "Don't Know" responses for three outcomes: the for the extent Policy implementation is being monitored (Outcome 1.4); the extent that policy implementation is being reported (Outcome 1.4); and the extent Contractors are aware of their IP rights (Outcome 1.5).

Figure 4: Summary of survey responses (outcomes)

Text version
Survey Response Percentage of Responses: Somewhat, Mostly, Completely Number of Respondents that Don't Know

PE 1.1 Clear Roles

83%

approximately 5

PE 1.1 Clearly Understood

78%

approximately 1

PE 1.2 Improved Clarity

77%

approximately 4

PE 1.3 Effective approach

73%

approximately 17

PE 1.4  Monitored

61%

approximately 33

PE 1.4 Reported

69%

approximately 45

PE 1.5 Contractors aware

81%

approximately 27

PE1.6  IP rights used

77%

approximately 23

The following sections provide further analysis on the data collected for each intended outcome.

5.1.i) To what extent are roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies? (PE1.1)

Summary Finding:

Progress in achieving this outcome. For example, the Policy is clear on role definitions and responsibilities, and the Policy is mainstreamed into current procurement system.

The Policy clearly defines roles and responsibilities to the Deputy Minister level and identifies the roles of TBS, PSPC and ISED (understanding that the role of PSPC related to data collection has changed).

The Policy empowers Deputy Ministers to take the necessary steps for its implementation. Almost all interviewees stated that the roles, responsibilities, and accountabilities for the Policy were clearly defined and understood. Some individual comments were made regarding the need for some departments to provide their own guidance to improve clarity depending on the nuances or complexity of their work. In some cases, departments such as NRCan, ESDC and NRC have created an IP Office or IP Centre of Excellence to provide ongoing guidance and advice and support the continuing need for IP awareness and education, including training of procurement officers on the Policy.

Two questions were asked in the survey. Firstly, 83% of respondents indicated that the policy's roles, responsibilities, and accountabilities are clearly defined (somewhat, mostly, completely). Secondly, most respondents (77%) believe that the role, responsibilities, and accountabilities are "somewhat" (24%), "mostly" (43%) or "completely" (10%) understood (n=97). Overall, survey respondents ranked these outcomes as the first and third most achieved, respectively.

5.1.ii) To what extent do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts?

Summary Finding:

Progress in achieving this outcome, but there are opportunities for improvement. For example, the Policy and guidance have improved clarity, but there is an ongoing need for Information, Communication and Education products for Policy users.

Almost all interviewees perceive that there is clarity or improved clarity on IP ownership decision making with the Policy. The improved clarity has been supported by guidance, both from the centre and that developed within departments. Nonetheless, ongoing awareness and education are important to keep people informed on the Policy. In addition, how decisions are translated into contracts using the standard SACC related to IP (4006, 4007) may need further clarity or flexibility, given the vast array of procurement scenarios.Footnote 12

The survey showed that 74% of respondents (n=97) perceive that the Policy has improved clarity on IP ownership decision making (somewhat, mostly, completely).

Figure 5: To what extent do you have improved clarity on IP ownership decision-making for Crown procurement contracts?

Text version
Likert Scale Percentage of Respondents

Not at all

6%

To a minor extent

15%

Somewhat

31%

Mostly

34%

Completely

9%

Don't know/Not applicable

4%

5.1.iii) To what extent have departments and agencies established an effective approach for the implementation of the Policy?

Summary Finding:

Progress in achieving this outcome, but unable to determine the extent. For example, some departments have developed policies, tools, guidance, and intranet sites to support implementation.

Interviews and document review both support the finding that departments and agencies have established an effective approach. It should be noted that our interviewee sampling was based on the top 10 departments with the highest volume of procurement contracts (see Section 3.0).

The document review identified evidence that some departmentsFootnote 13 have established their own approach to implementing the Policy, including developing departmental IP Policies, training materials, job aids, and contract clauses, and establishing an IP Centre of Excellence. These approaches extend beyond the Policy and include other IP issues beyond Crown procurement contracts (e.g., IP generated by federal employees, transfer payments, collaboration agreements, grants and contributions, etc.).

Table 2: CSPC IP training course
Year Registrations Successfully Percent

2015-16

266

165

62%

2016-17

265

170

64%

2017-18

293

219

75%

2018-19

345

240

70%

2019-20

308

197

64%

Total

1477

991

67%

The document review also revealed that there are ongoing training and capacity building on the Policy. According to figures from the Canadian School of the Public Service (CSPS), 991 persons completed the 3-hour online training course on IP Policy during the period under review. It is assumed that a high proportion of that figure are unique persons (i.e., people did not take the training twice). That represents a 67% completion rate from those who registered for the course. The overall target audience for the training (the total number of people in the public service who should take the training) is unknown, so an assessment on the extent to training needs are met is not possible. In the reviewers' opinion, having almost 200 persons trained per year on the Policy is not insignificant, assuming that most would be relatively new to the respective function.

The survey findings are more nuanced. A majority (61%) of respondents believed that their department/ agency established an effective approach for implementing the Policy (N=97) (somewhat, mostly, completely), and 16% selecting "Don't know". If the "Don't know" responses are removed as a more accurate reflection of informed opinion, then 73% of respondents believe their department or agency has established an effective approach (somewhat, mostly, completely) (n= 81).

The variances between interview and survey lead to a hypothesis that the effective approaches being established in departments and agencies is at least partially related to the strength of the Policy's relevance to the department and agency's mandate and operations. Departments and agencies with high volumes of procurement, and a higher proportion of contracts that may generate IP, were more likely to have established an effective IP approach in their procurement practices.

This hypothesis is supported by an analysis of the survey data (recognizing the limitations of a small sample). Survey responses were disaggregated by the departments with the highest volume of contracts (our interview list had 10 of the departments and agencies with the highest volume of contracts), of which 9 responded to the survey for a total of 40 survey responses (a total of 48 responses with 8 "Don't Know" responses removed) versus those departments with a volume of less than 100 contracts per year. There were 8 departments and agencies fitting that profile in the survey, with a total of 8 survey responses (there were no "Don't Know" responses). The table below presents the survey results. There are differences between the two groups, with 83% of high contract column respondents indicating an effective approach is established "somewhat, mostly, completely" compared to 63% for low contract volume respondents. However, most notable is the relatively high percentage (38%) of low contract volume respondents who selected "Not at all".

Figure 6: To what extent has your department/agency established an effective approach for implementing the Policy.
Text version
Likert Scale Percentage of Respondents (B) Percentage of respondants (R)

Not at all

5%

38%

To a minor extent

13%

0%

Somewhat

30%

13%

Mostly

33%

50%

Completely

20%

0%

5.1.iv) To what extent is that approach monitored and reported?

Summary Finding:

Progress in achieving this outcome, but there are opportunities for improvement. For example, there is data available on the Open Data Portal, but the purpose and use of reporting information could be clarified.

Interviews, survey, and document review demonstrated that there is a monitoring and reporting system in place, noting there was a transition from PSPC being responsible for data extraction (Purchasing Activity Report) to all information now being available on the Open Data Portal,Footnote 14 which according to some interviews has facilitated timely reporting and compliance. Regarding data consistency and quality, it is important to note that:

  • Information regarding IP is captured in the procurement system and is not a separate reporting requirement;
  • Data is entered upon contract award and is therefore pre-contract, forward looking and based on assumptions and perceptions at the time of contracting;
  • Data is the department's responsibility, and if data quality is an issue, it would be an issue for all data in the procurement system, not just related to IP;
  • Neither ISED, nor TBS or PSPC perform any "data scrubbing" or validation, as data is provided directly from departments to the central platform; and
  • While audits of the IP provisions in contracts are not a specific Title Policy requirement, it is unknown if there were any audits conducted by departments on procurement data quality.

It was noted that ISED annually reports only on contracts over $25,000, which was based on an historic decision, and an assumption of a low probability of contracts under $25,000 generating IP. This threshold may no longer be required given the launch of the Open Data Portal, and the January 2020 update to the Treasury Board Guidelines on the Proactive Disclosure of Contracts, which stated that IP reporting will be for all contracts over $10,000 and must be implemented by January 2022.

As noted previously in Figure 4, a large percentage of survey respondents (39% and 46% respectively) responded, "Don't know" to the question of monitoring or reporting. If the "Don't Know" responses are removed as a more accurate reflection of informed opinion, 61% (n=59) think there is monitoring, and 69% (n=52) think there is reporting (somewhat, mostly, completely).

In general, there has been progress made in reporting, with the use of the Open Data Portal being especially noteworthy. Still, there are opportunities for improvement in validation, consistency, increasing awareness of the purpose and use of monitoring and reporting information, and other considerations such as reporting thresholds.

5.1.v) To what extent are Contractors aware of IP rights as per the Policy?

Summary Findings:

Unable to assess the extent that this Outcome is achieved given limited evidence collected.

There was limited data collected to determine the extent to which Contractors are aware of their IP rights. There were mixed responses from internal (government) interviewees, with some stating that they were not sure, some stating that they understood most Contractors to be aware, while others indicated that outreach to Industry was an area for improvement. Many interviewees expressed a belief that if a Contractor is interested in IP, they would also be informed on how the government manages it. Of the five industry representatives interviewed, most but not all, were aware of the Policy and their IP rights. A few external interviewees suggested that outreach may be needed to increase the awareness of Policy IP rights among smaller businesses.

 In response to the question, "To what extent are Contractors aware of IP rights as per the Policy?" the survey response included 30% of respondents who selected "Don't Know", and 57% selecting "somewhat", "mostly," or "completely" (81% if "Don't Know" responses are removed as a more accurate reflection of informed opinion).

5.1.vi) To what extent are opportunities to establish IP rights used by the contractor or Crown?

Summary Finding:

Progress in achieving this outcome. Intellectual Property Rights (IPRs) are being established in Crown contracts, for both the Crown and Contractors.

Intellectual Property Rights (IPRs) are being established in Crown contracts, for both the Crown and Contractors.

During the review period (2015 to 2020), there were 182,448 contracts over $25,000, of which 18% (32,412) were identified as potentially creating IP. Of the 32,412 contracts with IP, 66% (21,538) were processed as Contractor owned IP (with an annual high of 70% and an annual low of 62%). Of those, 2397 (11%) were deemed to have IP with potential commercial exploitation (or 1.3% of all contracts).

Overall, there is a trend towards more contracts potentially creating IP, increasing contractor-owned IP, and somewhat increasing commercially exploitable IP, which are all trends that support the relevance of the Policy and the effectiveness of its implementation. The following figures present the trends. Figure 7 presents the percentage of all contracts (the data can be found in Table 3 under Total Number of Original Documents, or the second column from the left) with IP terms in them, fluctuating between a low of 14% to a high of 21%, with an increasing trend over the review period.

Figure 7: % of all Contracts with IP terms
Text version
Year Percentage of Respondents

2015

16%

2016

14%

2017

21%

2018

18%

2019

18%

Table 3: Summary of Data ExtractsFootnote 15
Year Total Number of Original Documents Contractor Owned Crown Owned No Ip Terms in Contract Organization Not Subject to IP Policy Number of Contracts with IP % of all Contracts with IP Contracts with IP, % Contractor Owned Potential Exploitable Exploitable % of Contractor Owned Exploitable % of all Contracts Departments Included

2015

26,984

2,687

1,520

22,734

43

4,207

16%

63%

264

10%

0.98%

85

2016

28,126

2,479

1,489

24,140

18

3,968

14%

62%

212

9%

0.75%

85

2017

38,612

5,504

2,417

30,691

N/A

7,921

21%

69%

535

10%

1.39%

74

2018

44,181

5,712

2,456

36,013

N/A

8,168

18%

70%

556

10%

1.26%

81

2019

44,454

5,156

2,992

36,397

N/A

8,148

18%

63%

830

16%

1.86%

83

Totals or % Average

182,448

21,538

10,874

149,975

61

34,412

18%

66%

2 397

11%

1.31%

N/A

Figure 8 presents the percentage of contracts with IP that are Contractor owned. This fluctuates from a low of 63% to a high of 70% and demonstrates an increasing trend over the review period. It is noted that that the Policy makes no specific commitments to an ideal target ratio and historical data will determine what is to be expected.

Figure 8: % of Contracts with IP, Contractor Owned
Text version
Year Percentage of Respondents

2015

63%

2016

62%

2017

69%

2018

70%

2019

63%

Figure 9 presents the percentage of all contractsFootnote 16 that are deemed to have commercially exploitable IP. This varied from a low of 0.75% to almost 2%, with an increasing trend over the review period.Footnote 17 While the numbers are low, it does demonstrate a trend that procurement officers are continuing to apply the Policy, they are increasingly thinking about commercially exploitable IP, and, if there is such IP, it is Contractor-owned. This could also be due to increasing awareness of Procurement Officers of the Policy due to the new guidance issued in 2015.

Figure 9: % of all Contracts, commercially exploitable IP
Text version
Year Percentage of Respondents

2015

0.98%

2016

0.75%

2017

1.39%

2018

1.26%

2019

1.86%

The survey sought concrete examples of commercialized IP. Only 10% of respondents indicated they were aware of any concrete examples of a contractor commercializing IP developed as a result of a government contract. Of those, a few were able to provide concrete examples such as a greenhouse gas modelling tool, falling rock monitoring sensor technology, an energy benchmarking tool for the mining industry and a platform for retaining indigenous languages.

5.2 What are the factors that facilitate or hinder the achievement of outcomes? (PE2)

Summary Finding:

There was strong evidence identifying the importance of Information, Education and Communication products in providing clarity to the Policy and guidance on its implementation as the key facilitating factors.

The factors identified as facilitating the achievement of outcomes (e.g., guidance, clear and simple policy, flexibility in delivery, etc.) were often cited as areas for improvement. For example, in both survey and interviews, there is a call for more and better Information, Communication and Education (ICE) products (e.g., guidance, briefing notes, tools, trainings, etc.) to improve clarity. That may, in part, have to do with the fact that some procurements involve more complex IP issues. In any case, it may be useful to update the guidance or provide new examples that would be helpful in dealing with emerging issues such as Cloud services, AI, Open Data, and Open Science.

Regarding the question, "How does the structure for the administration of the Policy facilitate or hinder achievement of outcomes?", there were limited comments captured from interviewees. No interviewee identified an issue with the current structure for administering the Policy. Interviewees identified elements to consider in the Policy's administration which included the need to link the Policy to procurement and contracting modernization efforts from TBS, and performance monitoring in terms of achievement of outcomes.

Some survey respondents provided comments on the question, but the responses tended to be related to the implementation of the Policy (and are captured elsewhere in this report).

5.3 Have there been unintended (positive or negative) outcomes? (PE3)

Summary Findings:

No definitive findings based on the evidence collected.

There was little evidence collected for this question, with most interviewees unable to identify any unintended outcomes. No item was identified more than once by interviewees.

One unintended outcome identified by one interviewee was that in their respective department, the ratio of Crown IP ownership has increased. The theory suggested is that because the Policy requires an ongoing discussion and dialogue around IP, there is now an in-depth understanding of the benefits to IP ownership within this department. This could, however, be an exception as a random sampling of five departments did not replicate this result.

6.0 Findings related to lessons learned, Best Practices and areas for improvement

6.1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy? (LL1)

Summary Finding:

The most cited area for improvement included the development of new or revised Information, Communication and Education products to support the implementation of the Policy. Some best practices within departments were also identified and could be disseminated.

Regarding best practices, there is evidence of some departments (e.g., NRCan, ESDC, NRC, etc.)Footnote 18 developing departmental approaches to assist with their implementation of the Policy. While the review did not assess their effectiveness, these departments stand out as possible best practices. For example, the departments listed above have established an IP Office, or IP Centre of Excellence, that provides advice, tools and templates, guidance on many IP issues (including but not exclusive of the scope of IP covered by the Policy). Other possible best practices noted included ensuring briefings to senior management on IP, and the Open Data Portal for reporting.

Regarding areas for improvement, the most cited area in all the lines of evidence is the need for greater clarity through new and revised ICE products. This is partly due to the complex and nuanced nature of procurement and developments in the operating environment and the increasing role of cloud services, AI, Open Data, Open Science, research collaborations, and other matters. This is supported by all lines of evidence, including the international scan that noted that other jurisdictions had modernized their IP and procurement approach when it comes to software and technical data, often in close consultation with the private sector (see Section 4.1). Also noted under other review questions, is that there continues to be a portion of procurement officers whose culture/mentality is that the Crown should own all IP, indicating a need for further ICE.

Noted here and elsewhere in other review questions was that outreach and engagement with industry could be improved (not just during the contracting process), and the embodiment of the intent of the Policy and the SACC as the actual mechanism for its implementation could be reviewed by PSPC and other interested departments.

The international comparison also identified some possible best practices, as there were developments in some jurisdictions. Both the United States and Australia further developed their approaches towards IPR in government contracts. In both cases, the focus was principally on technical data and software. In Australia, there was an introduction of principles in the management of IP, which was the foundation for the development of a significant number of tools and guidance on IPR management. There is a broad approach covering all IP issues and the guidance is comprehensive (the Australian IP Manual is 235 pages in lengthFootnote 19).

As part of the IPR modernization, the Australia government looked closely at technical data (TD) and software, and this resulted in a perspective shift on how to define background and foreground IP. It was found that the use of third-party foreground and background IP was not always useful when working with TD and software. As an example, source code could fall within both foreground and background definitions. So, Australia developed new definitions and a rights-based framework on categories of TD/software: highly sensitive TD/software, TD software, commercial TD/software. The concept is illustrated in Figure 10.

Figure 10: Key IP Concepts (Australia)Footnote 20

Text version

Former approach

  • Rights based on vague/ broad IP concepts
  • Source code: background IP and foreground IP
  • COTS software: background IP and third party IP
  • Maintenance manual: background IP, foreground IP and third party IP

New approach

  • Rights based on categories of TD/software
  • Source Code: highly sensitive TD/software
  • Maintenance Manual: TD/Software
  • COTS software commercial: TD/software

In the United States, an Industry-Government Panel was established to investigate IPR concerning technical data in government contracting, which was followed by new federal and defence regulations that further defined IPR. It was also noted that the United States Department of Defense has produced its policyFootnote 21 and is looking to modernize its approach by establishing certain principles and an IP Cadre (a trained cohort of procurement professionals) to incorporate best practices, support training and enhance department IP knowledge and expertise. The policy itself sets out some core principles including:

  • Integrate IP planning fully into acquisition strategies and product support strategies to protect core DoD interests over the entire life cycle.
  • Seek to acquire only those IP deliverables and license rights necessary to accomplish these strategies, bearing in mind the long-term effect on cost, competition, and affordability.
  • Ensure acquisition professionals have relevant knowledge of how IP matters relate to their official duties.
  • Negotiate specialized provisions for IP deliverables and associated license rights whenever doing so will more effectively balance DoD and industry interests than the standard or customary license rights.
  • Communicate clearly and effectively with industry regarding planning, expectations and objectives for system upgrade and sustainment.
  • Avoid requirements and strategies that limit the DoD's options in accessing vital technology and commercial solutions available from industry.
  • Respect and protect IP resulting from technology development investments by both the private sector and the United States Government.
  • Clearly identify and match data deliverables with the license rights in those deliverables. Data or software deliverables are of no value unless and until the license rights to use it are attached, and the United States Government obtains and accepts those deliverables.

In summary, the scan demonstrated that other jurisdictions are looking at policies and/or guidance, in consultation with Industry, to better address and balance the needs of government and industry, especially when dealing with procurements involving technical data and software (which is often the case, but not limited to, the defence and security sector).

6.2 What aspects of the Policy can be improved upon? (LL2)

Summary Finding:

There have been developments during the last five years that may require changes in the Policy, or in supporting materials, such as the Policy Guide. Potential areas for improvement in the Policy, such as clarifying the role of PSPC related to data, reporting requirements on commercialization, linkages with new government initiatives such as Open Science and Open Data, and how to keep pace with a modernized procurement environment (e.g., AI, Cloud Services, etc.).

The comments received in the survey and interviews repeated answers provided in the previous question related to implementation issues. The findings regarding Policy implementation focussed on more ICE products, more consultations with Industry, and other matters. It is possible that during such consultations, further opportunities for improving the Policy could be identified. There were also issues identified in other sections of this report that may necessitate changes in the Policy and supporting materials. Emerging issues that may have impact on the Policy include:

  • The role of PSPC has changed since the last revision of the Policy. PSPC's role regarding the data capture and reporting related to the Policy is no longer the same given the introduction of the Open Portal and should be clarified.
  • The procurement and IP environments have evolved as it relates to new initiatives (e.g., Open Science, Open Data, etc.) and emerging technologies (e.g., Artificial Intelligence, Cloud Services, etc.).
  • The need for reporting requirements on commercialization resulting from Crown Contracts should be considered.

7.0 Conclusions and recommendations

7.1 Relevance

There is still an ongoing need for the Policy; it remains relevant for government priorities and addresses a need of those entities involved in innovation or with background IP. There does, however, need to be continuing efforts to keep the government procurement and contracting professions and related management informed and trained on the Policy. There is also a need for dialogue with interested industry partners on the Policy and its implementation, so that industry needs are met while also balancing the Government of Canada's needs for meeting its socio-economic and security agenda.

To that end, the review:

  1. Recommends that as part of the next review/evaluation of the Policy ISED/FSTP strengthen the rationale for the Policy by examining the extent to which IP arising from government contracts is commercially exploited. A related review/evaluation issue could also be the extent to which the Crown makes use of the IP that it claims ownership of.
  2. Recommends that ISED/FSTP consider any best practices or lessons learned from the process and outputs related to the development of IP related policies and guidance in Canada and other jurisdictions, such as Australia and the United States.

7.2 Effectiveness

Regarding effectiveness, the Policy has been effective. During the period under review, there is a trend towards more contracts expecting to have IP, increasing contractor-owned IP, and increasing commercially exploitable IP. There are variances in the effectiveness of approaches across departments. In general, those departments where there is a high volume of procurement that involves IP are more likely to have put in place supportive structures and processes. The review identified some best practice examples, such as IP Offices, intranets, guidance, ICE tools, and templates. There are areas for improvement related to Policy awareness and education and guidance that accommodate the range of IP scenarios and annual reporting, such as updating existing guidance to address contemporary procurement issues as identified by this review and reviewing the training course provided by Canada School of Public Service (CSPS).

To that end, the review:

  1. Recommends that ISED/FSTP review the IP Training Course offered by the CSPS and other supporting material to ensure that the Policy rationale and the monitoring and annual reporting responsibilities are fully addressed. ISED/FSTP may wish to consult with other departments to support this work.
  2. As it relates to monitoring and annual reporting, it is recommended that ISED/FSTP include all contracts above $10,000 in Title Policy annual reporting, and that considerations be made to ensure comparability of data sets across time.Footnote 22 ISED/FSTP may wish to consult with other departments to support this work.

7.3 Lessons learned

There is a depth of experience within departments and agencies in terms of best practices and lessons learned that is not being shared or disseminated in any structured manner. There are guides, tools, training and other materials developed by departments that could benefit other departments/agencies, assuming departments are willing to share their own products.

Related to the above, there is an ongoing demand for new and revised ICE products to bring greater clarity to the implementation of the Policy, as well as to address the demand for information on contemporary procurement issues such as Cloud services, AI, software, and government initiatives such as Open Data and Open Science.

Finally, the review identified potential areas for improvement in the Policy itself.

To that end, the review:

  1. Recommends that ISED/FSTP explore ways to share information and materials that have been developed by departments/agencies, and where needed, develop new and revised ICE products to bring further clarity to the Policy and guidance on its implementation by consulting with the broader government community. Departments should also consult with industry stakeholders.
  2. Recommends that ISED/FSTP consider potential areas for improvement in the Policy and Guidance, such as the clarifying the role of PSPC related to data, reporting requirements on commercialization, updating linkages with new government initiatives such as Open Science and Open Data, and how to keep pace with a modernized procurement environment (e.g., AI, Cloud Services, etc.).

Annex A: Review framework

Review Question Review Sub-Question Indicator Lines of Evidence Data Sources
Relevance
R1. Is there a continued need for the Policy?

R1.1. Who are the stakeholders and are their needs being addressed by the Policy?

R1.2 Are there gaps in the Policy regarding stakeholders or stakeholder needs?

R.1.1.a) Identification of stakeholder needs addressed by the Policy

R1.2.a) Identification of gaps in the Policy regarding stakeholders or stakeholder needs

  • Document Review
  • Policy related documents
  • Interviews
  • Internal and external interviews
  • International comparison
  • Policy related documents from other jurisdictions
R2. Is the Policy aligned with government priorities? R2.1 What federal government priorities align with the Policy? R2.1.a) Consistency of the Policy outcomes with federal priorities.
  • Document review
  • Speeches from the Throne, Budgets, Ministerial speeches, Government of Canada press releases and backgrounders
  • Interviews
  • Government stakeholders only
R2.2 What federal government strategic outcomes align with the Policy? R2.2.a) Consistency of Policy outcomes with federal strategic objectives.
  • Document review
  • Speeches from the Throne, DRFs, Ministerial speeches, Government of Canada press releases and backgrounders
  • Interviews
  • Government stakeholders only
R3. Does the Policy add value to the government procurement process? R3.1 What is the added value of the Policy to the government procurement process?

R3.1.a) Identification of added value of the Policy

R3.1.b) Stakeholder perspective on counter-factual

  • Document Review
  • Policy related documents, literature
  • Interviews
  • Internal and external
  • Survey
  • Survey
Performance – Effectiveness
PE1. To what extent have the intended outcomes of the Policy been achieved? PE1.1. To what extent are roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies? PE1.1.a) Stakeholders' perceptions of clarity and understanding of roles and responsibilities
  • Document Review
  • Policy related documents, reports
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE1.2 To what extent do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts? PE1.2. a) Stakeholders' perceptions of clarity of IP ownership decision-making
  • Document Review
  • Policy related documents, reports
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE 1.3 To what extent have departments and agencies established an effective approach for the implementation of the Policy? PE1.3. a) Stakeholders' perceptions of having established effective approaches and examples of measures in place (i.e., committees, review, audits)
  • Document review
  • Departmental documents
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE 1.4 To what extent is that monitored and reported? PE1.4. b) Stakeholders' perceptions of monitoring and reporting approaches
  • Document review
  • Departmental documents
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE1.5 To what extent are Contractors aware of IP rights as per the Policy?

PE1.5. a) Contractor's awareness of IP Policy

PE1.5b) Stakeholders perception of contractor's awareness

  • Document Review
  • Policy related documents (e.g., outreach, communications with Industry)
  • Interviews
  • Internal and External interviews with focus on Industry
  • Survey
  • Survey
PE1.6 To what extent are opportunities to establish IP rights used by the contractor or Crown?

PE1.6. a) Number and type of IP ownership decisions made

PE1.6. b) Stakeholders' (Departments) perceptions of contractor opportunities

PE 1.6.c) Stakeholders' perceptions of the use of IP opportunities by contractors

  • Document and Database Review
  • Database, reports
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE2. What are the factors that facilitate or hinder the achievement of outcomes? PE2.1) What factors facilitate or hinder the achievement of outcomes? PE2.1. a) Stakeholders' perceptions of facilitating/hindering factors
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE2.2) How does the structure for the administration of the Policy facilitate or hinder achievement of outcomes? PE2.2. a) Stakeholders' perceptions of the structure for administrating the Policy
  • Interviews
  • Internal and external interviews
  • Survey
  • Survey
PE3. Have there been unintended (positive or negative) outcomes? PE3.1 What are the unintended outcomes (positive or negative) of the Policy? PE3.1. a) Identification of unintended outcomes resulting from the Policy
  • Document review
  • Policy related documents
  • Interviews
  • Internal and external interviews
Lessons Learned
LL1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy? the Policy itself? LL1.1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy? LL1.1. a) Identification of lessons learned, areas for improvement or best practices
  • Document review
  • Policy related documents
  • Interviews
  • Internal and external interviews
  • Survey
  • International Comparison
  • Survey
  • Documents, literature, web sites
LL1.2 What aspects of the Policy can be improved upon? LL1.2. a) Stakeholders' perspectives on areas for improvement
  • Interviews
  • Internal and external interviews
  • Survey
  • International Comparison
  • Survey
  • Documents, literature, web sites

Annex B: Logic model

Text version

There are three inputs in the logic model. The two inputs for Governance and Administration are ISED as well as TBS and PSPC, while the inputs for Implementation are Departments and Agencies.

ISED activities within Governance and Administration are: data analysis and reporting, development of training, communication and guidance materials, and response to ad hoc requests for advice. ISED outputs are: implementation guide, training material, communication material, report/presentations, and advice.

TBS and PSPC activities within Governance and Administration are data capture, reporting to Treasury Board Advisory Committee on Contract (TBACC), and verification of exemptions (TBS) while TBS and PSPC outputs are reports/presentations.  

Departments and Agencies activities are documentation of process and decision, orientation and training of personnel, and data capture, QA and reporting. Outputs are training and information material, documented decision, and proactive disclosure reports.

The reach of outputs is split in two based on whether they are for implementation or instead for monitoring.  The reach of implementation outputs are contracting authorities in applicable federal government departments and agencies.  The reach of outputs for monitoring are TBACC and the ADM Committee on Science and Technology (ADMCST) for implementation are contracting authorities.

The immediate outcomes of Governance Administration activities and outputs are threefold: first, roles, responsibilities and accountabilities for the management of IP generated under a Crown procurement contract are clearly defined and understood. Second, departments and agencies have improved clarity on IP ownership decision-making under a Crown procurement contract.  Finally, departments and agencies have established an effective approach for the implementation of the Policy, which is effectively monitored and reported.

The immediate outcomes of implementation activities and outputs are twofold:  departments and agencies have established an effective approach for the implementation of the Policy, which is effectively monitored and reported.  Second, contractors are aware of IP right as per the Policy.

Next, all immediate outcome lead to the intermediate outcome that opportunities to decide/establish IP rights are available and used: i) Contractor owned, ii) Crown owned through exceptions or the Treasury Board Exemptions, iii) licencing arrangements.

Finally, this intermediate outcome leads to the final outcome that IP developed by a contractor in the course of a Crown Procurement Contract is used by the Crown to fulfill its requirements and/or retained by the contractor for potential commercial use.

Annex C: Interviewee list and interview guides

Last Name Position Organization
Lorraine Jenkinson Procurement Specialist PSPC
Bill Troupe Manager PSPC
Luc-Andre Vincent Senior Analyst PSPC
Alain Courville Supply Team Leader PSPC
David Monahan Senior Director PSPC
Tammy Okemaysim A/Manager PSPC
Paul Thomson Manager, Strategic Policy Sector PSPC
Cheryl Power Sr. Policy Analyst ISED
Michael Rosenblatt Director ISED
David Abraha Analyst/Advisor TBS
Caroline Landry Acting DG PSPC
Santina Vendra Assistant Director – currently on language training PSPC
Terry Wood DG Major Procurements DND
Alain Marcotte Director General ECCC
Anne-Marie Lan Phan Head, IP Management & Technology Transfer CSA
Yves Jobin Director, Administrative Services ESDC
Gina Brewer (pour Tony Matson) Assistant Commissioner, Corporate Services and A/CFO CSC
Yann Blais Director General EDSC
Robert McGillivary Senior Manager Policy; CFO Branch EDSC
Kalvinder Brar DG (acting DG for Sean Kealey) SSC
Karl Rasmussen A/Director, Intellectual Property Division NRCan
Sabrina Bedjera Officer NRCan
Delmar Permann Head, Intellectual Property Office ECCC
External Interviews
Michele Lajeunesse Senior Vice President, Governmental Relations and Policy Technation
Nevin French Officer Technation
Michael Fekete Legal Advisor Osler
Karen Ng Officer IBM
Nicals Todd Vice President Policy, Communications and Government Relations CADSI

Review of the Policy on Title to Intellectual Property (IP)
Arising Under Crown Procurement Contracts

Interview Guide 1: Policy administrators

Introduction

The Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts (the Policy) addresses the ownership and licensing of intellectual property (IP) arising during a Crown procurement contract. The Federal Science and Technology Policy (FSTP) Directorate of Innovation, Science and Economic Development Canada (ISED) is conducting a review of the Policy for the period April 1, 2015 to March 31, 2020 in accordance with the requirement, under section 6.5.3 of the Policy.

ISED has contracted the services of TDV Global Inc. to assist in the conduct of the review. This interview is part of the review process and will be used to examine the relevance and effectiveness of the Policy and to identify lessons learned and recommendations, as necessary.

Because of your experience with the Policy, you have been identified as a valuable resource to provide input to this process. The following questions will serve as a guide for our interview. Please be assured that your responses will be managed in accordance with the Access to Information Act and the Privacy Act and other applicable privacy laws. The information gathered from these interviews will be reported at the aggregate level, and individual responses will not be attributed to you in the final report.

The interview will take approximately 45 minutes to complete.

Overview
Question 1

Please describe your role and your level of familiarity with the Policy?

Relevance

This portion of the interview will deal with your views on the extent to which the Policy continues to address a demonstrable need and its alignment with Government of Canada (GoC) objectives and priorities.

Question 2
  • 2.1 In your view, who are the key stakeholders of the Policy? What are their needs and how are they being addressed by the Policy?
  • 2.2 Are there any gaps in the Policy regarding stakeholder needs? If so, please explain.
Question 3
  • 3.1 In your view, how well do the objectives of the Policy align with federal government priorities?
  • 3.2 In your view, how do the objectives of the Policy align with federal government strategic outcomes?
Question 4
  • 4.1.a) In your view, what is the value-added of the Policy to the government procurement process?
  • 4.1 b Would the results/outcomes change without the Policy? If so, how?
Effectiveness

This portion of the interview will deal with your views on the extent to which the intended outcomes of the Policy have been achieved. Where appropriate, provide concrete examples that demonstrate achievement of results.

Question 5
  • 5.1 In your view, to what extent have intended outcomes of the Policy been achieved? To what extent:
    • a) are roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies?
    • b) do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts?
    • c) have departments and agencies established an effective approach for the implementation of the Policy?
    • d) is Policy implementation monitored and reported?
    • e) are opportunities to establish IP rights available and used?
Question 6
  • 6.1 In your view, what are the factors that facilitate or hinder the achievement of outcomes?
  • 6.2 How does the structure for administrating the Policy facilitate or hinder achievement of outcomes?
Question 7
  • 7.1 Have there been unintended outcomes (positive or negative) of the Policy? Please explain.
Lessons learned
Question 8
  • 8.1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy?
  • 8.2 Are there any other aspects of the Policy that can be improved upon?

Thank you!

Review of the Policy on Title to Intellectual Property (IP)
Arising Under Crown Procurement Contracts

Interview Guide 2: Policy implementors

Introduction

The Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts (the Policy) addresses the ownership and licensing of intellectual property (IP) arising during a Crown procurement contract. The Federal Science and Technology Policy (FSTP) Directorate of Innovation, Science and Economic Development Canada (ISED) is conducting a review of the Policy for the period April 1, 2015 to March 31, 2020 in accordance with the requirement, under section 6.5.3 of thePolicy.

ISED has contracted the services of TDV Global Inc. to assist in the conduct of the review. This interview is part of the review process and will be used to examine the relevance and effectiveness of the Policy and to identify lessons learned and recommendations, as necessary.

Because of your experience with the Policy, you have been identified as a valuable resource to provide input to this process. The following questions will serve as a guide for our interview. Please be assured that your responses will be managed in accordance with the Access to Information Act and the Privacy Act and other applicable privacy laws. The information gathered from these interviews will be reported at the aggregate level, and individual responses will not be attributed to you in the final report.

The interview will take approximately 45 minutes to complete.

Overview
Question 1

Please describe your role and your level of familiarity with the Policy?

Relevance

This portion of the interview will deal with your views on the extent to which the Policy continues to address a demonstrable need and its alignment with Government of Canada (GoC) objectives and priorities.

Question 2
  • 2.1 In your view, who are the key stakeholders of the Policy? What are their needs and how are they being addressed by the Policy?
  • 2.2 Are there any gaps in the Policy regarding stakeholder needs? If so, please explain.
Question 3
  • 3.1 In your view, how well do the objectives of the Policy align with federal government priorities?
  • 3.2 In your view, how do the objectives of the Policy align with federal government strategic outcomes?
Question 4
  • 4.1.a) In your view, what is the value-added of the Policy to the government procurement process?
  • 4.1 b Would the results/outcomes change without the Policy? If so, how?
Effectiveness

This portion of the interview will deal with your views on the extent to which the intended outcomes of the Policy have been achieved. Where appropriate, provide concrete examples that demonstrate achievement of results.

Question 5
  • 5.1 In your view, to what extent have intended outcomes of the Policy been achieved? To what extent:
    • a) are roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined and understood by your department/agency?
    • b) does your department/agency have improved clarity on IP ownership decision-making for Crown procurement contracts?
    • c) has your department/agency established an effective approach for the implementation of the Policy? [optional: have other departments/agencies established effective approaches for implementation of the Policy?]
    • d) is Policy implementation monitored and reported within your department/agency? Across government?
    • e) are Contractors that your department/agency deals with aware of IP rights as per the Policy?
    • f) are opportunities to establish IP rights available and used by your department/agency?
Question 6
  • 6.1 In your view, what are the factors that facilitate or hinder the achievement of outcomes?
  • 6.2 How does the structure for administrating the Policy facilitate or hinder achievement of outcomes?
Question 7
  • 7.1 Have there been unintended outcomes (positive or negative) of the Policy? Please explain.
Lessons learned
Question 8
  • 8.1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy?
  • 8.2 Are there any other aspects of the Policy that can be improved upon?

Thank you!

Review of the Policy on Title to Intellectual Property (IP)
Arising Under Crown Procurement Contracts

Interview Guide 3: External stakeholders

Introduction

The Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts (the Policy) addresses the ownership and licensing of intellectual property (IP) arising during a Crown procurement contract. The Federal Science and Technology Policy (FSTP) Directorate of Innovation, Science and Economic Development Canada (ISED) is conducting a review of the Policy for the period April 1, 2015 to March 31, 2020 in accordance with the requirement, under section 6.5.3 of thePolicy.

ISED has contracted the services of TDV Global Inc. to assist in the conduct of the review. This interview is part of the review process and will be used to examine the relevance and effectiveness of the Policy and to identify lessons learned and recommendations, as necessary.

Because of your experience with the Policy, you have been identified as a valuable resource to provide input to this process. The following questions will serve as a guide for our interview. Please be assured that your responses will be managed in accordance with the Access to Information Act and the Privacy Act and other applicable privacy laws. The information gathered from these interviews will be reported at the aggregate level, and individual responses will not be attributed to you in the final report.

The interview will take approximately 30 minutes to complete.

Overview
Question 1

Please describe your role and your level of familiarity with the Policy?

Relevance

This portion of the interview will deal with your views on the extent to which the Policy continues to address a demonstrable need.

Question 2
  • 2.1 In your view, who are the key stakeholders of the Policy? What are their needs and how are they being addressed by the Policy?
  • 2.2 Are there any gaps in the Policy regarding stakeholder needs? If so, please explain.
Question 4
  • 4.1.a) In your view, what is the added value of the Policy to the government procurement process?
  • 4.1.b) In your opinion, what would be the impact on IP ownership for federal procurement contracts if there was no Policy in place?
Effectiveness

This portion of the interview will deal with your views on the extent to which the intended outcomes of the Policy have been achieved. Where appropriate, provide concrete examples that demonstrate achievement of results.

Question 5
  • 5.1 In your view, to what extent have intended outcomes of the Policy been achieved? To what extent:
    • a) are roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined and understood by departments and agencies?
    • b) do departments and agencies have improved clarity on IP ownership decision-making for Crown procurement contracts?
    • c) are Contractors aware of IP rights as per the Policy?
    • d) are opportunities to establish IP rights available and used?
Question 6
  • 6.1 In your view, what are the factors that facilitate or hinder the achievement of intended outcomes?
Question 7
  • 7.1 Have there been unintended outcomes (positive or negative) of the Policy? Please explain.
Lessons learned
Question 8
  • 8.1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy?
  • 8.2 Are there any other aspects of the Policy that can be improved upon?

Thank you!

Annex D: Document list

D.1 General Evaluation Documents
No. Title Date Pages
General Documentation
1 Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts April 1, 2015 9
2 2015 Purchasing Activity Report above $25,000 (PWGSC) 2017 2
3 Datacap – Analysis of Intellectual Property Ownership in Government Procurement Contracts over $25,000 Nov 29 2019 2019 7
4 Datacap – Presentation - Analysis of Intellectual Property Ownership in Government Procurement Contracts over $25,000 January 2016 2016 8
5 Datacap – Presentation - Analysis of Intellectual Property Ownership in Government Procurement Contracts over $25,000 March 2018 2018 7
6 2018 Purchasing Activity Report above $25,000 (PWGSC) 2018 2
7 Datacap – Presentation - Analysis of Intellectual Property Ownership in Government Procurement Contracts over $25,000 November 2015 2015 6
8 2014 Purchasing Activity Report above $25,000 (PWGSC) 2015 3
9 2016 Purchasing Activity Report above $25,000 (PWGSC) 2018 2
10 Implementation Guide: Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts 2015 15
11 Evaluation of the Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts 2010 34
12 Appendices to the Evaluation Report 2010 56
13 Contracting Policy Notice 2015-1: Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts 2015 2
15 Financial Administration Act, RSC., 1985, c. F-11 Sept 9 2020 175
16 Policy on Planning and Management of Assets April 2019 N/A
17 Managing Intellectual Property in Defence and Marine Procurement (https://www.tpsgc-pwgsc.gc.ca/app-acq/amd-dp/propriete-intellec-property-eng.html ) 2018 N/A
18 Ministerial Mandate Letter, Minister of ISED Nov 2015 N/A
19 Ministerial Mandate Letter, Minister of ISED https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-innovation-science-and-industry-mandate-letter Dec 2019 N/A
20 Export CY 2019 Proactive (Datacap for 2019) Oct 2020 1
21 IP CY2019 Pro-Active (Datacap 2019) Oct 2020 1
22 Data Cap February 2019 Eng Final (presentation includes 2017 data) - 8
23 IP above 25K (Datacap 2017) - 2
24 IP above 25K - 2
25 Business rules and limitations - 1
26 Government of Ontario website https://www.ontario.ca/page/trademarks-copyright-other-intellectual-property#foot-2 - N/A
Departments
27 NRC - Service Contract Information Form March 2020 5
28 NRC's IP Policy (https://nrc.canada.ca/en/research-development/intellectual-property-licensing/nrcs-intellectual-property-ip-policy ) ND -
29 SACC 4006https://buyandsell.gc.ca/policy-and-guidelines/standard-acquisition-clauses-and-conditions-manual/4/4006/3 2010 -
30 SACC 4007 https://buyandsell.gc.ca/policy-and-guidelines/standard-acquisition-clauses-and-conditions-manual/4/4007/3 2010 -
31 ESDC IP Policy 2019 10
32 ESDC IP Centre of Excellence Intranet Homepage - 1
33 ESDC IP Presentation 2017 26
34 ESDC Contract Form – Crown Owned ND 1
35 ESDC Contract Form – Contractor Owned ND 1
D2. Comparison study documents
No. Document Source Jurisdiction

1

"What Every Company Should Know about IP Rights When Selling to the US Government", Susan B. Cassidy, Alexander B. Hastings, and Jennifer L. Plitsch, ©2017 Landslide, Vol. 9, No. 6, July/August 2017, by the American Bar Association.

https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2016-17/july-august/what-every-company-should-know-about-ip-rights-when-selling-us-government/

USA

2

FAR 52.227-14 Rights in Data-General

https://www.acquisition.gov/far/52.227-14

USA

3

IP in Government Contracts: Trends and Developments, John McCarthy, Chris Garcia, Yuan Zhou, 2019, Crowell and Moring

https://www.crowell.com/files/20190507-IP-in-Government-Contracts-OOPS.pdf

USA

4

2018 Report Government- Industry Advisory Panel on Technical Data Rights

https://www.ndia.org/-/media/Sites/NDIA/Policy/Documents/Final%20Section%20813%20Report

USA

5

IP Review 2011, TDV Environmental Scan

 

All

6

Department of Defense to Overhaul Intellectual Property Policies Through New Office

Kilpatrick Townsend & Stockton LLP

https://www.lexology.com/library/detail.aspx?g=46c0c783-8101-4b0a-83c7-289925627e1c

USA

6

+ (Enabling Modernization Through the Management of Intellectual Property)

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN14261_AD2018_26_Final.pdf

USA

7

 DOD INSTRUCTION 5010.44, IP Acquisition and Licensing October 2019

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/501044p.PDF

USA

8

ASDEFCON Technical Data and Intellectual Property Framework – Roadshow Presentation 2018

File shared by program

Australia

9

Intellectual Property Manual 2018

https://www.communications.gov.au/file/39041/download?token=yMyeJ29x

Australia

10

Intellectual Property Principles

https://www.communications.gov.au/documents/intellectual-property-principles-commonwealth-entities

Australia

11

IP Australia (website)

https://www.ipaustralia.gov.au/tools-resources/ip-toolkit/researcher/contracts-and-other-resources

Australia

12

IP Toolkit

From IP Australia website

Australia

13

Guide to Investing in Australia, Government of Australia

https://www.austrade.gov.au/International/Invest/Guide-to-investing/Running-a-business/Understanding-Australian-business-regulation/Australian-Intellectual-Property-laws

Australia

14

Intellectual Property – Statement of MOD Policy

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/490095/20150319-MOD_IPR_Policy_Statement.pdf

UK

15

Defence and Security Procurement in the UK, Bird & Bird LLP, January 16 2019

https://www.lexology.com/library/detail.aspx?g=5e835e26-335c-4b79-abf3-b7f7df9fae18

UK

16

Schedule 9 – IPR

Unknown

UK

17

Model Services Agreement Combined Schedules, UK Government Legal Department, Version 1.09, July 2020

https://www.gov.uk/government/publications/model-services-contract

UK

18

Model Services Contract

https://www.gov.uk/government/publications/model-services-contract

UK

19

Model Services Contract Guidance

https://www.gov.uk/government/publications/model-services-contract

UK

20

Government website

https://www.gov.uk/intellectual-property-an-overview

UK

21

UK IP Office

https://www.gov.uk/government/organisations/intellectual-property-office

UK

22

BC Government Site

https://www2.gov.bc.ca/gov/content/governments/services-for-government/bc-bid-resources/reference-resources/intellectual-property/intellectual-property-in-contracts

BC

23

General Service Agreement

https://www2.gov.bc.ca/gov/content/governments/services-for-government/bc-bid-resources/templates-and-tools/service-contract-templates/general-service-agreement-information

BC

24

Ontario Government Unveils Intellectual Property Action Plan Along with COVID-19 Research Projects

July 17, 2020

By Sam Frost

https://www.bereskinparr.com/doc/ontario-government-unveils-intellectual-property-action-plan-along-with-covid-19-research-projects?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

ON

25

BPS Primer on Innovation Procurement, Government of Ontario, (no date)

https://www.doingbusiness.mgs.gov.on.ca/mbs/psb/psb.nsf/0/df7388300f40aec68525814d004a00bf/$file/bps_primer_on_innovation_procurement_interim.pdf

ON

26

Major Changes to Public Sector Procurement in Quebec, Miller and Thomson Advocats, January 2018

https://www.millerthomson.com/en/blog/breaking-ground-mt-construction-law/changement-importants-au-regime-des-marches-publics-au-quebec/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

PQ

27

Autorité de Marches Publics

https://amp.quebec/accueil/

PQ

28

Government Portal

https://www2.gouv.qc.ca/entreprises/portail/quebec/gerer?g=gerer&sg=&t=o&e=994946902#:~:text=Une%20propri%C3%A9t%C3%A9%20intellectuelle%20est%20un,un%20mod%C3%A8le%20%C3%A0%20usage%20commercial.

PQ

29

Alberta websites

https://lawlibrary.ab.ca/research-guides/intellectual-property/

https://www.alberta.ca/contract-opportunities-with-the-government-of-alberta.aspx

Alberta

30

Newfoundland, Public Procurement Agency

https://www.gov.nl.ca/ppa/

NFLD

Annex E: Online survey

Survey Questions

The Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts (the Policy) addresses the ownership and licensing of intellectual property (IP) arising during a Crown procurement contract. The Federal Science and Technology Policy (FSTP) Directorate of Innovation, Science and Economic Development Canada (ISED) is conducting a review of the Policy for the period April 1, 2015 to March 31, 2020 in accordance with the requirement, under section 6.5.3 of thePolicy.

ISED has contracted the services of TDV Global Inc. to assist in the conduct of the review. This survey is part of the review process and will be used to examine the relevance and effectiveness of the Policy and to identify lessons learned and recommendations, as necessary.

Because of your experience with the Policy, you have been identified as a valuable resource to provide input to this process. Please be assured that your responses will be managed in accordance with the Access to Information Act and the Privacy Act and other applicable privacy laws. The information gathered from this survey will be reported at the aggregate level, and individual responses will not be attributed to you in the final report.

The survey will take less than 10 minutes to complete.

Demographics

1) What is your title?

  • Director General
  • Director
  • Manager
  • Procurement Advisor
  • Procurement Assistant
  • Procurement Coordinator
  • Procurement Officer
  • Procurement Specialist
  • Team Leader
  • Others

2) Please identify your geographical location.

  • British Columbia
  • Manitoba
  • New Brunswick
  • Newfoundland and Labrador
  • Northwest Territories
  • Nova Scotia
  • Nunavut
  • Ontario
  • Prince Edward Island
  • Quebec
  • Saskatchewan
  • Yukon
  • Others

3. How long have you been involved with the procurement of government contracts?

  • Less than one year
  • Between 1 year and 4 years
  • More than 4 years

4) To what extent are you familiar with the Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts?

  • 1 = Not at all
  • 2 = To a minor extent
  • 3 = Somewhat
  • 4 = Mostly
  • 5 = Completely

Relevance

5) In your opinion, to what extent is the Policy aligned to federal government priorities? (R2)

  • 1 = Not at all
  • 2 = To a minor extent
  • 3 = Somewhat
  • 4 = Mostly
  • 5 = Completely
  • Don't know/Not applicable

6) In your opinion, to what extent is the Policy aligned to federal government strategic outcomes?

  • 1 = Not at all
  • 2 = To a minor extent
  • 3 = Somewhat
  • 4 = Mostly
  • 5 = Completely
  • Don't know/Not applicable

7) In your opinion, to what extent does the Policy bring added value to the government procurement process? (R3)

  • 1 = Not at all
  • 2 = To a minor extent
  • 3 = Somewhat
  • 4 = Mostly
  • 5 = Completely
  • Don't know/Not applicable

8) In your opinion, what would be the results/impact on IP ownership for federal procurement contracts if there was no Policy? (3.1)

  • Limit 100 words (500 characters)

Effectiveness

9) In your opinion, to what extent have the following Policy outcomes been achieved? (PE1))

To what extent:

a) are the roles, responsibilities, and accountabilities for the management of IP generated under a Crown procurement contract clearly defined?

b) are they clearly understood by you?

c) do you have improved clarity on IP ownership decision-making for Crown procurement contracts?

d) has your department/agency established an effective approach for the implementation of the Policy?

e) is Policy implementation monitored?

f) is Policy implementation reported?

g) are Contractors aware of IP rights as per the Policy?

h) are opportunities to establish IP rights used?

  • 1 = Not at all
  • 2 = To a minor extent
  • 3 = Somewhat
  • 4 = Mostly
  • 5 = Completely
  • Don't know/Not applicable

10) In your view, what are the factors that facilitate or hinder the achievement of outcomes? (PE2.1)

  • Explain: (100 words/500 characters)

11) In your view, does the structure for administering the Policy facilitate or hinder achievement of outcomes? Please explain: (PE2.2)

  • Comment: (100 words/500 characters)

Lessons Learned

12) In your view, are there areas for improvement in the Policy? Yes/No (LL2)

  • If yes, please provide example: (100 words/500 characters)

13) In your view, are there areas for improvement in the implementation of the Policy? Yes/No. (LL1)

  • If yes, please provide example: (100 words/500 characters)

14) Are you aware of any concrete examples of a contractor commercializing IP developed as a result of a government contract? Yes/ No (PE1)

  • If yes, please provide example: (100 words/500 characters)

Would you be willing to speak to the reviewers of the Policy on this subject? Yes/No.

  • If yes, please provide your email address here:

Annex F: International comparison protocol and document list

During the evaluation of the Policy in 2011, an environmental scan was conducted. The intent of this international comparison is to update information on international advancements/changes in government procurement and IP, from 2015-2020. A desk study (document and literature review involving a search of government activities, journal articles and other publicly available information) will be conducted to collect and analyse information for three countries: Australia, the United States, and the United Kingdom, as well as Canadian jurisdictions.

Define the question to be addressed

The Review Framework will determine the questions to be addressed by the international comparison. The question identified in the framework is related to Relevance:

  • R1.1. Who are the stakeholders and are their needs being addressed by the Policy?
  • R1.2 Any gaps in the Policy regarding stakeholders or stakeholder needs?
  • LL1.1 What are the lessons learned, areas for improvement or best practices regarding the implementation of the Policy?
  • LL1.2 What aspects of the Policy can be improved upon?

Identify document and literature sources

Potential information sources will be identified by web searches. This will be complemented by grey literature from internet searches and other websites.

Conduct research and report

The methodology for the International Comparison will mirror that of the document review. An internal technical report will be developed that identifies findings from the desk study. These findings will be consolidated with the findings from other lines of evidence to develop overall findings for the review.

Search terms

The search terms were the same for all jurisdictions. In many jurisdictions the initial search resulted in no relevant links. In those cases, further searches were conducted on government procurement to identify contractual clauses related to IPR that would reflect practice.

  • Intellectual Property in Government Contracts X
  • X Government Procurement and Intellectual Property Rights
  • X Government Procurement
  • X Government General Contract Clauses
Jurisdiction Source
United States

https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2016-17/july-august/what-every-company-should-know-about-ip-rights-when-selling-us-government/

https://www.acquisition.gov/far/52.227-14

https://www.crowell.com/files/20190507-IP-in-Government-Contracts-OOPS.pdf

https://www.ndia.org/-/media/Sites/NDIA/Policy/Documents/Final%20Section%20813%20Report

https://www.lexology.com/library/detail.aspx?g=46c0c783-8101-4b0a-83c7-289925627e1c

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN14261_AD2018_26_Final.pdf

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/501044p.PDF

Australia

https://www.communications.gov.au/file/39041/download?token=yMyeJ29x

https://www.communications.gov.au/documents/intellectual-property-principles-commonwealth-entities

https://www.ipaustralia.gov.au/tools-resources/ip-toolkit/researcher/contracts-and-other-resources

https://www.austrade.gov.au/International/Invest/Guide-to-investing/Running-a-business/Understanding-Australian-business-regulation/Australian-Intellectual-Property-laws

UK

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/490095/20150319-MOD_IPR_Policy_Statement.pdf

https://www.lexology.com/library/detail.aspx?g=5e835e26-335c-4b79-abf3-b7f7df9fae18

https://www.gov.uk/government/organisations/intellectual-property-office

https://www.gov.uk/intellectual-property-an-overview

https://www.gov.uk/government/publications/model-services-contract

British Colombia

https://www2.gov.bc.ca/gov/content/governments/services-for-government/bc-bid-resources/reference-resources/intellectual-property/intellectual-property-in-contracts

https://www2.gov.bc.ca/gov/content/governments/services-for-government/bc-bid-resources/templates-and-tools/service-contract-templates/general-service-agreement-information

Alberta

https://lawlibrary.ab.ca/research-guides/intellectual-property/

https://www.alberta.ca/contract-opportunities-with-the-government-of-alberta.aspx

Ontario

https://www.bereskinparr.com/doc/ontario-government-unveils-intellectual-property-action-plan-along-with-covid-19-research-projects?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

https://www.ontario.ca/page/trademarks-copyright-other-intellectual-property

https://www.doingbusiness.mgs.gov.on.ca/mbs/psb/psb.nsf/0/df7388300f40aec68525814d004a00bf/$file/bps_primer_on_innovation_procurement_interim.pdf

Quebec

https://www.millerthomson.com/en/blog/breaking-ground-mt-construction-law/changement-importants-au-regime-des-marches-publics-au-quebec/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

https://amp.quebec/accueil/

https://www2.gouv.qc.ca/entreprises/portail/quebec/gerer?g=gerer&sg=&t=o&e=994946902#:~:text=Une%20propri%C3%A9t%C3%A9%20intellectuelle%20est%20un,un%20mod%C3%A8le%20%C3%A0%20U.S.ge%20commercial.

Newfoundland and Labrador

https://www.gov.nl.ca/ppa/