Overview
FAR 27.404 describes the implementation and operation of the "Rights in Data—General" clause (52.227-14) and related provisions, establishing the framework for how the Government and contractors share, protect, and license technical data and computer software. It defines the specific conditions under which the Government acquires "unlimited rights" versus "limited" or "restricted" rights, and provides procedures for copyright assertion and the correction of data markings.
Key Rules
- Unlimited Rights Categories: The Government automatically acquires unlimited rights in data first produced under the contract, "Form, Fit, and Function" (FFF) data, and manuals or instructional materials for installation, operation, and maintenance.
- Withholding Rights: Contractors may generally withhold "limited rights data" or "restricted computer software" developed at private expense, provided they deliver FFF data in its place.
- Alternates II and III: If the Government requires delivery of withheld data or software, the Contracting Officer must use Alternate II (for limited rights data) or Alternate III (for restricted computer software), which provide the Government with specific, limited-use licenses.
- Copyright Assertion: Contractors must generally obtain written permission from the Contracting Officer to assert copyright in data first produced under the contract, though a "paid-up, nonexclusive, irrevocable, worldwide license" is reserved for the Government.
- Colleges and Universities: Under Alternate IV, academic institutions are typically granted pre-authorized copyright assertion for basic or applied research, and the Government is prohibited from restricting the release of unclassified research results.
- Marking Challenges: If the Government believes data markings are unauthorized, it must provide the contractor 60 days to justify them. If the justification is rejected, the contractor has 90 days to file a claim before the markings are ignored or canceled.
- Omitted Markings: If a contractor inadvertently fails to mark data with restrictive notices, they may request to add the notices within 6 months, provided the data has not already been disclosed without restriction outside the Government.
- Inspection Rights: By using Alternate V, the Government can inspect data at the contractor’s facility for up to 3 years after contract completion to verify the validity of restrictive markings or evaluate performance.
Practical Implications
- "Mark it or Lose it": Contractors face a high risk of losing intellectual property rights if they fail to apply the correct restrictive legends; data delivered without markings is legally presumed to be "unlimited rights" data.
- Negotiation of Alternates: Both parties must determine during the solicitation phase which Alternates (I-V) are necessary, as these significantly shift the balance of power regarding who controls the delivery and use of proprietary technical information.
- Due Diligence in Research: For academic and research-focused contracts, the regulations favor open dissemination, but contractors must still manage the distinction between research data and computer software "developed to the point of practical application," which the Government may still restrict.