The first possibility is obvious. The recital 14 of the preamble to the Decision stressed that, “In light of the particular importance of knowledge-sharing in the context of a demonstration programme, funds should only be disbursed if knowledge-sharing requirements are met.”
It follows that if somebody doesn’t want to receive funds from NER300 Reserve, he shouldn’t bother about licenses. This remark can be considered as unserious but it helps to order things.
For the subject-matter of the problem of crucial importance are points 8 and 9 of the “Specifications for Legally Binding Instrument” (hereinafter referred to as “Specifications”).
However these provisions are ambiguous in some parts, as a preliminary point there should be made distinction between the information falling within the categories of the “Relevant Knowledge”, “Foreground” and “Background”. This distinction is pivotal because there are differentiated terms with respect to making the information available to others.
As regards the definitions, the “Relevant Knowledge” means principally the information being inscribed in the table of Annex II to the Decision (but see further remarks beneath), “Foreground” means “the results, including information, whether or not they can be protected, which are generated under the Project” (including rights related to copyright; design rights; patent rights; plant variety rights; or similar forms of protection), and “Background” is information “which is held by the Project Sponsor prior to their accession to this agreement, as well as copyrights or other intellectual property rights pertaining to such information, the application for which has been filed before their accession to this agreement, and which is needed for carrying out the Project or for using foreground”.
The category of “Relevant Knowledge” is regulated in point 8 and point 9(c) of the Specifications.
A. Technical set-up and performance
– reliability
– CO2 captured
– performance at different levels, including differences between expected and real performance
– increase in fuel demand; electricity, heat and cooling demand
– key inputs and outputs and design
– future identified Research and Development issues
B. Cost level
– capital and operating costs
– totals and costs per unit performance (tonne CO2 stored, clean MWh produced)
C. Project management
– legislation/ permitting
– stakeholder management, including interaction with Governments
– planning
– project organisation
D. Environmental impact
– effectiveness: reduction of CO2 emissions per unit energy
– other environmental impacts at undisturbed operation
E. Health and safety
– incidents and near misses occurred (disturbed operation)
– monitoring and resolution systems to track safety
– health issues in undisturbed operation
F. CCS storage site performance
– models and simulations (development CO2 plume – pressure front)
– history match results and adjustments (assessment to be made: normal within a
deviation range or significant irregularity that needs action)
– behaviour of displaced brine through CO2 injection.
The definition of the “Relevant Knowledge” refers principally to the information being inscribed in the table of Annex II to the Decision (which seems correct), but some concerns can be raised as regards additional categories of information which seem to be mentioned in point 8(d)(1) of the Specifications i.e. “any further information specified in reporting template to be designated and provided for such purpose by the Commission”. If such “any further information” contained in the future template only specify the general categories laid down in Annex II to the Decision, it should not lead to an anxiety of the participants. In the opposite variant, the category of the “Relevant Knowledge” wouldn’t be exhaustive which, in turn, could pose considerable risks to the sponsors of the project.
Another uncertainty pose the interaction between “Relevant Knowledge” and the “Foreground”. Assuming that the “Foreground” is “every result which is generated under the Project”, such a definition seems broader than “Relevant Knowledge” (which – with a reservation mentioned above – relates principally to the list exhaustively inscribed in Annex II to the Decision). When the specific result generated under the Project doesn’t fall under any of the categories provided for in Annex II, it constitutes “Foreground” but not the “Relevant Knowledge”. But the next thing is questionable, whether the “Specifications” (being simply the model agreement implementing the provisions of the Decision) are allowed to go beyond Article 12 of the Decision, which, as regards knowledge sharing obligation, expressly enumerates only elements set out in Annex II.
The second part of these complicated considerations will try to analyze further issues and lastly - exemptions from knowledge sharing obligations.