2006-05 JISC - Consortium Agreements.ppt

Consortium Agreementsand how we can learn to love them… : 

Consortium Agreementsand how we can learn to love them… Andrew Charlesworth Senior Research Fellow in IT & Law University of Bristol

Why have a consortium agreement? : 

Why have a consortium agreement? A Consortium Agreement (CA) is a legally binding document between the project partners. Adopting an effective CA is a key part of good practice in multi-partner project management, and can reduce operational/legal difficulties. Constructing a CA makes parties think about implications and consequences What are project partners expected to put into the project, and what do they expect to get out of it? Who is responsible for particular operational, technical and financial issues? What risks might arise?

Why have a consortium agreement? : 

Why have a consortium agreement? Clear set of rules for managing the project by project partners/project team regulating operational issues between project partners determining ownership (and exploitation) of IPRs If things go wrong, a good CA can limit the cost of settling disputes between project partners indicates agreed process for settling disputes, including where disputes are to be taken (mediation, arbitration, courts), which country’s law applies etc. provides explicit evidence to 3rd parties (e.g. arbitrators or judges) as to project partners’ intent, in particular towards ownership of IP.

Possible consequences of no CA : 

Possible consequences of no CA Poor internal organisation/management Inadequate assessment of risk/liability Lack of processes for handling changes of project partners Inability to settle internal disputes in a clearly understood, efficient and cost-effective manner Inadequate attention paid to IPRs Usefulness/exploitability of project deliverables can be reduced, further academic research/dissemination prevented Difficulties in continuing the work of the project after the initial funding period has ended

Why projects don’t have CAs : 

Why projects don’t have CAs “Didn’t know about CAs, or that we needed one.” “Didn’t think we needed a CA, as we all knew what we wanted to do.” “Didn’t know who to ask about CAs.” “Didn’t want to involve University admin. people - would take too long and they might say ‘No’. ” “Didn’t want to involve University lawyers - would take too long and cost too much.” “Thought partner X was dealing with that.”

CAs and IPRs : 

CAs and IPRs A key element of a CA will be its IPR clauses. ‘Background’ and ‘Foreground’ IPRs These will address these types of issue: Specification & descriptions of background IP and arrangements for its use during the project Allocation and exercise of ownership in foreground IP, including joint ownership; and agreement on its use during the project, and afterwards. For joint ownership of foreground IP, designation of a lead institution to deal with it on behalf of the other parties. Exploitation of IP produced by the consortium for the benefit of all parties.

Some CA Dos and Don’ts : 

Some CA Dos and Don’ts DO start thinking about your CA as early as possible in the project development process. DON’T simply copy someone else’s CA Your CA should address your project’s issues DO consult with appropriate institutional officers – contracts managers, DP officers etc. DO ensure that project partners are aware of their respective rights/obligations under the CA. DON’T make assumptions about other project partners’ capabilities, attitudes, and understandings - consult.

Some CA Dos and Don’ts : 

Some CA Dos and Don’ts DO ensure project operational elements are covered, but DON’T forget strategic elements. DO seek professional legal help as appropriate, and DON’T be afraid to seek clarification of professional advice or legal drafting. DO ensure that the project team all understand the purpose and implications of the CA. DO pay very careful attention to the IPR issues. DO be wary of entering into side agreements or special arrangements not envisaged in the CA.