Article 64 · Limits to transfer of ownership

1.Any pre-existing intellectual property, including software components, models, methods, platforms, or systems owned or controlled by the economic operator prior to or independently of the procurement shall remain the property of the economic operator and shall not be subject to ownership transfer obligations to the public buyer.

2.By way of derogation from paragraph 1, public buyers may require the ownership transfer of pre-existing intellectual property rights that are necessary for the performance, operation, and maintenance of the solutions, in particular in cases of critical infrastructure and where this is included in the procurement detail in a proportionate, transparent and non-discriminatory manner without distorting competition.

3.For intellectual property rights arising in connection with the performance of a public contract, public buyers shall specify, where relevant, the allocation of those rights between the public buyer and the economic operator in the procurement detail.

4.By way of derogation from paragraph 3 of this Article for public contracts subject to an innovation procedure pursuant to Articles 41 to 45, economic operators shall retain ownership of the intellectual property rights arising during the innovation procedure or in the performance of the respective public contract, unless justified by overriding reasons of the public interest clearly stated in the procurement detail. Such overriding reasons of public interest may relate inter alia to the need to prevent technological lock-in, or to protect the security or critical public services of the public buyer, a Member State or the Union, in particular as regards critical infrastructure.