Open source licence for microorganisms 

Licence agreement

Preamble

By acquiring and using the microorganisms purchased under the terms and conditions of this licence agreement you, as the Licensee, accept the provisions of this licence agreement. The purpose of these provisions is the free use of microorganisms. The Licensor is the natural or legal person who hands over these microorganisms to you. The Beneficiary of the licence agreement is Biotinkering Berlin e.V., a registered association.

In order to achieve the objective of free use, enhancement, cultivation, dissemination and propagation of microorganisms, without there being a monopoly taken advantage of by individuals, any use of the microorganisms is only permissible in accordance with these licensing provisions. As a Licensee, you undertake to limit the use of these microorganisms or the propagation of them and enhancements vis-à-vis third parties exclusively to the manner stipulated in this licence. You will in particular refrain from making any claim to microorganisms variety rights, patent rights or any other statutorily possible exclusivity rights of the microorganisms or their propagation and enhancements.  

Simultaneously, the licensing provisions oblige you, in turn, to subject any microorganisms or enhancements of the microorganisms obtained from the present microorganisms to these licensing provisions, and only to pass them on to third parties on these conditions (“copyleft”). Should you infringe the obligations arising from this licence agreement, you will forfeit your rights of use of the microorganisms or any microorganisms or enhancements obtained therefrom. In addition, the Beneficiary shall, in such cases, be entitled to require you to cease and desist and make a payment, as stipulated in this agreement (agreement to the benefit of third parties).

Definitions

The following definitions apply to this licence:

1.1. Microorganisms. Microorganisms, within the meaning of this agreement, shall mean, single cell microorganisms as viruses, viroids, bacteria, fungus, microscopi-cally small single or multicellular algae, other eukaryote single cellular organisms as well as microscopically small multicellular animals, as well as microorganisms cell cultures as well as all informational components therein, which have in each case been placed on the market under the terms and conditions contained in this licence or has been obtained from such microorganisms through propagation or has been enhanced.

1.2. Propagation shall mean any type of reproduction, i.e. the new or further genera-tion of microorganisms. Propagation shall also include technical methods of extract-ing genetic information for the purpose of generating microorganisms with certain characteristics, including any methods that are unknown today.

1.3. Placing on the market: The offering, keeping in stock for distribution, keeping for sale, and any handing over of microorganisms to another party.

1.4. Enhancements shall mean culture or breeding of new microorganismss, in re-gard to which these microorganisms have, under this licence agreement, been in-volved, at at least one point, in the course of the development – regardless of whether such enhancements concern varieties, populations or other microorganisms groupings or individual microorganismss or parts of microorganismss.

1.5. The copyleft principle obliges all future microorganisms growers to grant users of their enhancements the same rights as those that they have enjoyed themselves.

1.6. Licensor: The previous owner of the microorganisms, who is rightfully handing them over to the Licensee under the terms of this License, conferring the rights of use of the microorganisms according to Article 3.

1.7. Licensee: Anyone who takes possession of or utilises the microorganisms in accordance with these licensing provisions.

1.8. Beneficiary: Biotinkering Berlin  e.V., Fehmarnerstr. 4, 13353 Berlin, Germany

Conclusion of the agreement

(1)  With these licensing provisions, the Licensor declares vis-à-vis everyone that she or he is making an offer to conclude a licence agreement on the granting of rights of the use of the microorganisms in accordance with the following provisions. The agreement shall materialise once the Licensee acquires the microorganisms, or otherwise obtains them with the consent of the prior owner, however at the latest once he or she opens the package of microorganisms. The declaration of ac-ceptance does not need to be received by the Licensor.

(2)  Upon concluding the licence agreement, the Licensor hereby assigns his or her rights arising from the licence agreement, in particular the cease and desist rights and compensation rights for damage in accordance with Article 6, to the Beneficiary.

(3)  This licence agreement is to be understood as a contract under civil law. It shall, be deemed to have been accepted as being legally mandatory by all Parties, from the moment of acquiring the microorganisms or opening the packet, once the Licen-see begins to make use of the microorganisms, even if the Licensee contests the terms and conditions of the licence agreement.

Scope of the licence rights

(1)  Upon the materialisation of the licence agreement, the Licensee will be granted the right to use all the microorganisms, as he or she has received them, under the terms and conditions of this licence.

(2)  The microorganisms may be used for any purpose, and by anyone who accepts the terms and conditions of this licence, in particular also for enhancement.

(3)  The Licensee may pass on the microorganisms to others, propagate them, en-hance them and disseminate propagated or enhanced microorganisms, however on-ly on the condition that he or she provides a copy of the licence agreement to all other parties to whom he or she disseminates such microorganisms, which will also legally bind any third parties to this licence agreement, and provides the Beneficiary, with evidence of having done so, upon request. This legal binding of said parties may be carried out in writing or verbally, or by way of an implicit declaration of con-sent on the part of such third party. Enhancements are, after being disseminated, to be regarded as “microorganisms” within the meaning of this licence.

(4)  The copyleft principle obliges the Licensee to impose the same rights and obli-gations on the future owners of the microorganisms, any microorganisms propagat-ed from the latter or enhancements of the microorganisms as he or she personally acquired and assumed. Any limitation of the rights in the microorganisms vis-à-vis third parties going beyond that, in particular any limitation based on statutorily grant-ed special protective rights (microorganisms variety rights, patent rights, trademark rights, copyrights, etc.) is prohibited and illegitimate.

open microorganism index

(1) The Beneficiary may provide its own microorganisms material index, in which all groupings of microorganisms (identified according to characterization criteria) and their enhancements are included. Any enhancements undertaken by the Licensee have to be provided to the Beneficiary in the form of a viable and propagatable seed sample for incorporation into the open microorganisms index.  

(2) The open microorganisms index will be published by the Beneficiary on its web-site once it has been prepared.

(3) The use of any varieties and enhancements that are included in this open micro-organisms index may not be limited in any way other than through the provisions of this licence agreement.

(4) The origin and properties of the material will be published by the Beneficiary in the open microorganisms index, and can be reviewed there at any time.

Rights of third parties and governmental prohibitions

Should the Licensee be obliged to deviate from these licensing provisions, based on rights of third parties or governmental prohibitions, in whole or in part, when utilising the microorganisms, he or she may only use the microorganisms and propagations thereof for personal, non-commercial purposes.

Lapse of the rights upon infringing the licensing provisions

(1) Should the Licensee infringe these licensing provisions, his or her rights of use of the microorganisms or their enhancements will lapse immediately. A claim may in particular be made against the Licensee by the Beneficiary, to ceasing and desisting from disseminating the microorganisms, propagating the microorganisms or enhanc-ing the microorganisms as well as to compensate damages.

(2) The expiry of the rights of use in accordance with paragraph 1 shall not have any influence upon the rights of other users, as long as the latter do not infringe the li-censing provisions themselves.

Applicable law, place of jurisdiction, any other provisions

(1) These licensing provisions shall be subject to German Law.

(2) Should one of the above clauses transpire to be invalid, it shall not affect the va-lidity of the remainder of these licensing provisions.

(3) Should the Licensee be a trader, legal person under public law or special public law funds, the place of jurisdiction shall be Berlin.

(4) The Beneficiary shall be entitled to assign his or her rights arising from this agreement in writing to third parties at any time.

(5) Should one of the provisions of this licence agreement be or become invalid, in-effective or unenforceable, this shall not affect the validity of the remaining licensing provisions. Rather, the provision concerned shall be replaced by a valid and effec-tive provision which comes closest to the economic intention of the contracting par-ties, in particular the objectives of the licence agreement laid down in the recitals.

Appendix: Text for the package

In order to be able to provide anyone with the rights to freely use the microorganisms in accordance with these licensing provisions, every time the microorganisms are passed on the following or a substantially equivalent reference to the applicability of this licence and its source is to be displayed clearly and attached.

Microorganisms with the same rights and obligations for all

By acquiring or opening the packet of these microorganisms you accept, by way of an agreement, the provisions of a licence agreement where no costs shall be incurred to you. You especially undertake not to limit the use of these microorganisms and their enhancements, for instance by making a claim to microorganisms variety rights or patent rights on the microorganisms’ components. You shall pass on the microorganisms, and propagations obtained therefrom, to third parties only on the terms and conditions of this licence. You will find the exact licensing provisions at www.biotinkering.org. If you do not wish to accept these provisions, you need to refrain from acquiring and using these microorganisms.


Citation:

CRISPR.kitchen presents a copyleft license for living microorganisms incl. proteins and genetic materials based on a civil law contract. Inspired by Agrecol e.V: and published in cooperation with biotinkering Berlin e.V.

Kotschi, J. and Rapf, K. (2016): Liberating seeds with an Open Source Seed (OSS) Licence. Working Paper. AGRECOL. Guggenhausen.

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