27.405-1 Special works
Source: FAR 27.405-1 on acquisition.gov
FAR 27.405-1 requires careful use and tailoring of the Rights in Data-Special Works clause to protect Government interests and manage data rights, copyright, and liability in contracts for special works.
Overview
FAR 27.405-1 addresses the use of the clause at 52.227-17, Rights in Data-Special Works, in contracts primarily for the production or compilation of data for the Government’s use. This section outlines when and how this clause should be applied, particularly in contracts involving audiovisual works, agency histories, surveys, instructional materials, compilations, investigatory reports, and certain software. It also provides guidance on specifying data use conditions, copyright assignment, indemnification, and modifications for works intended for public distribution.
Key Rules
- Use of 52.227-17 Clause
- Required in contracts for producing or compiling data for Government use, especially when distribution/use needs to be limited or indemnity is needed.
- Examples of Special Works
- Includes audiovisual works, agency histories, surveys, instructional materials, compilations, investigatory reports, and sensitive software.
- Specifying Data Use Conditions
- Contracts may define how, when, and under what conditions data can be used, released, or reproduced beyond contract performance.
- Copyright Assignment
- The requirement for copyright assignment to the Government can be deleted if not necessary for contract objectives.
- Indemnification
- The indemnification requirement can be deleted or limited if the contracting officer determines liability is unlikely.
- Modification for Public Purpose
- Agencies may modify the clause for works produced for public distribution to balance agency needs and creators’ rights.
Responsibilities
- Contracting Officers: Determine applicability of the clause, specify data use conditions, assess need for copyright assignment and indemnification, and modify clauses as needed for public works.
- Contractors: Comply with data rights, use, and indemnification requirements as specified in the contract.
- Agencies: Ensure contract clauses align with mission needs and legal protections.
Practical Implications
- Ensures the Government secures appropriate rights and protections for special works.
- Impacts how contractors handle data, copyright, and liability issues.
- Common pitfalls include failing to properly limit data use, omitting necessary indemnification, or not tailoring clauses for public distribution.
(a) The clause at 52.227-17, Rights in Data-Special Works, is for use in contracts (or may be made applicable to portions thereof) that are primarily for the production or compilation of data (other than limited rights data or restricted computer software) for the Government’s own use, or when there is a specific need to limit distribution and use of the data or to obtain indemnity for liabilities that may arise out of the content, performance, or disclosure of the data. Examples are contracts for-
(1) The production of audiovisual works, including motion pictures or television recordings with or without accompanying sound, or for the preparation of motion picture scripts, musical compositions, sound tracks, translation, adaptation, and the like;
(2) Histories of the respective agencies, departments, services, or units thereof;
(3) Surveys of Government establishments;
(4) Works pertaining to the instruction or guidance of Government officers and employees in the discharge of their official duties;
(5) The compilation of reports, books, studies, surveys, or similar documents that do not involve research, development, or experimental work;
(6) The collection of data containing personally identifiable information such that the disclosure thereof would violate the right of privacy or publicity of the individual to whom the information relates;
(7) Investigatory reports;
(8) The development, accumulation, or compilation of data (other than that resulting from research, development, or experimental work performed by the contractor), the early release of which could prejudice follow-on acquisition activities or agency regulatory or enforcement activities; or
(9) The development of computer software programs, where the program-
(i) May give a commercial advantage; or
(ii) Is agency mission sensitive, and release could prejudice agency mission, programs, or follow-on acquisitions.
(b) The contract may specify the purposes and conditions (including time limitations) under which the data may be used, released, or reproduced other than for contract performance. Contracts for the production of audiovisual works, sound recordings, etc., may include limitations in connection with talent releases, music licenses, and the like that are consistent with the purposes for which the works are acquired.
(c) Paragraph (c)(1)(ii) of the clause, which enables the Government to obtain assignment of copyright in any data first produced in the performance of the contract, may be deleted if the contracting officer determines that such assignment is not needed to further the objectives of the contract.
(d) Paragraph (e) of the clause, which requires the contractor to indemnify the Government against any liability incurred as the result of any violation of trade secrets, copyrights, right of privacy or publicity, or any libelous or other unlawful matter arising out of or contained in any production or compilation of data that are subject to the clause, may be deleted or limited in scope where the contracting officer determines that, because of the nature of the particular data involved, such liability will not arise.
(e) When the audiovisual or other special works are produced to accomplish a public purpose other than acquisition for the Government’s own use (such as for production and distribution to the public of the works by other than a Federal agency) agencies are authorized to modify the clause for use in contracts, with rights in data provisions that meet agency mission needs yet protect free speech and freedom of expression, as well as the artistic license of the creator of the work.