27.404-3 Copyrighted works
Source: FAR 27.404-3 on acquisition.gov
Contractors must obtain permission to assert copyright in data first produced under a contract, ensure proper notices, and grant the Government broad license rights, with specific procedures for research contracts and data not first produced under the contract.
Overview
FAR 27.404-3 outlines the rules and procedures for asserting copyright in works containing data produced under government contracts. It distinguishes between data first produced in the performance of a contract and data not first produced under the contract, specifying when contractors may assert copyright, the permissions required, and the Government’s license rights. The section also addresses the use of Alternate IV in research contracts with colleges and universities, and the requirements for copyright notices and Government sponsorship acknowledgments. It ensures that the Government retains broad rights to use, reproduce, and disseminate data, while allowing contractors to protect their interests under certain conditions.
Key Rules
- Permission to Assert Copyright
- Contractors must generally obtain written permission from the contracting officer before asserting copyright in works containing data first produced under the contract, except for technical or scientific articles published in professional venues.
- Request Process
- Contractors must submit a written request identifying the data and intended use when seeking permission to assert copyright, and the contracting officer should grant permission unless specific exceptions apply (e.g., official agency reports, internal use, national interest).
- Use of Alternate IV
- Alternate IV of clause 52.227-14 allows automatic copyright assertion for colleges/universities in basic or applied research contracts, with exceptions for software development contracts and certain facility management contracts.
- Government License Rights
- The Government receives a broad, irrevocable license to use, reproduce, and distribute data (with some limitations for computer software), and any different license scope must be clearly stated on the data.
- Copyright Notice Requirements
- Contractors must affix proper copyright notices and acknowledge Government sponsorship; failure to do so may result in loss of copyright protection.
- Data Not First Produced Under Contract
- Contractors must secure or grant the Government a copyright license for any data delivered that was not first produced under the contract, or obtain permission to do otherwise.
Responsibilities
- Contracting Officers: Review and approve contractor requests to assert copyright, determine when exceptions apply, ensure proper license scope is documented, and consult legal counsel as needed.
- Contractors: Request permission to assert copyright, provide required documentation, affix copyright notices and acknowledgments, and ensure proper licensing for data not first produced under the contract.
- Agencies: Oversee compliance, determine when broader or different license rights are needed, and ensure contract clauses reflect appropriate rights and restrictions.
Practical Implications
- This section protects both Government and contractor interests in data rights, balancing dissemination, public access, and proprietary interests. Contractors must be diligent in seeking permissions, documenting rights, and marking data appropriately to avoid forfeiting rights. Common pitfalls include failing to request permission, improper marking, or misunderstanding when Alternate IV applies.
(a) Data first produced in the performance of a contract.
(1) Generally, the contractor must obtain permission of the contracting officer prior to asserting rights in any copyrighted work containing data first produced in the performance of a contract. However, contractors are normally authorized, without prior approval of the contracting officer, to assert copyright in technical or scientific articles based on or containing such data that is published in academic, technical or professional journals, symposia proceedings and similar works.
(2) The contractor must make a written request for permission to assert its copyright in works containing data first produced under the contract. In its request, the contractor should identify the data involved or furnish copies of the data for which permission is requested, as well as a statement as to the intended publication or dissemination media or other purpose for which the permission is requested. Generally, a contracting officer should grant the contractor’s request when copyright protection will enhance the appropriate dissemination or use of the data unless the-
(i) Data consist of a report that represents the official views of the agency or that the agency is required by statute to prepare;
(ii) Data are intended primarily for internal use by the Government;
(iii) Data are of the type that the agency itself distributes to the public under an agency program;
(iv) Government determines that limitation on distribution of the data is in the national interest; or
(v) Government determines that the data should be disseminated without restriction.
(3) Alternate IV of the clause at 52.227-14 provides a substitute paragraph (c)(1) granting permission for contractors to assert copyright in any data first produced in the performance of the contract without the need for any further requests. Except for contracts for management or operation of Government facilities and contracts and subcontracts in support of programs being conducted at those facilities or where international agreements require otherwise, Alternate IV shall be used in all contracts for basic or applied research to be performed solely by colleges and universities. Alternate IV shall not be used in contracts with colleges and universities if a purpose of the contract is for development of computer software for distribution to the public (including use in solicitations) by or on behalf of the Government. In addition, Alternate IV may be used in other contracts if an agency determines that it is not necessary for a contractor to request further permission to assert copyright in data first produced in performance of the contract. The contracting officer may exclude any data, or items or categories of data, from the provisions of Alternate IV by expressly so providing in the contract or by adding a paragraph (d)(4) to the clause, consistent with 27.404-4(b).
(4) Pursuant to paragraph (c)(1) of the clause at 52.227-14, the contractor grants the Government a paid-up nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, distribute to the public, perform publicly and display publicly by or on behalf of the Government, for all data (other than computer software) first produced in the performance of a contract. For computer software, the scope of the Government’s license includes all of the above rights except the right to distribute to the public. Agencies may also obtain a license of different scope if the contracting officer determines, after consulting with legal counsel, such a license will substantially enhance the dissemination of any data first produced under the contract or if such a license is required to comply with international agreements. If an agency obtains a different license, the contractor shall clearly state the scope of that license in a conspicuous place on the medium on which the data is recorded. For example, if the data is delivered as a report, the terms of the license shall be stated on the cover, or first page, of the report.
(5) The clause requires the contractor to affix the applicable copyright notices of 17 U.S .C. 401 or 4 02, and acknowledgment of Government sponsorship, (including the contract number) to data when it asserts copyright in data. Failure to do so could result in such data being treated as unlimited rights data (see 27.404-5(b)).
(b) Data not first produced in the performance of a contract.
(1) Contractors shall not deliver any data that is not first produced under the contract without either-
(i) Acquiring for or granting to the Government a copyright license for the data; or
(ii) Obtaining permission from the contracting officer to do otherwise.
(2) The copyright license the Government acquires for such data will normally be of the same scope as discussed in paragraph (a)(4) of this subsection, and is set forth in paragraph (c)(2) of the clause at 52.227-14. However, agencies may obtain a license of different scope if the agency determines, after consultation with its legal counsel, that such different license will not be inconsistent with the purpose of acquiring the data. If a license of a different scope is acquired, it must be so stated in the contract and clearly set forth in a conspicuous place on the data when delivered to the Government. If the contractor delivers computer software not first produced under the contract, the contractor shall grant the Government the license set forth in paragraph (g)(4) of Alternate III if included in the clause at 52.227-14, or a license agreed to in a collateral agreement made part of the contract.