Overview
FAR Subpart 27.4 prescribes the policies and procedures regarding rights in data, copyrights, and the acquisition of data for all executive agencies (excluding the Department of Defense, which follows the DFARS). It establishes a framework to balance the government's need for technical data to ensure competition and mission fulfillment against the contractor's legitimate proprietary interest in their intellectual property.
Key Rules
- Data Rights Categories:
- Unlimited Rights: The government can use, disclose, and reproduce data for any purpose. This applies to data first produced under the contract, "Form, Fit, and Function" (FFF) data, and instructional manuals.
- Limited Rights: Applies to non-software data developed at private expense. The government is generally prohibited from using this for manufacturing or disclosing it outside the government without permission.
- Restricted Rights: Applies to computer software developed at private expense. Use is typically limited to one computer or as a backup.
- Form, Fit, and Function (FFF) Data: The government always receives unlimited rights in data necessary for physical and functional interchangeability, though this specifically excludes software source code and algorithms.
- Copyright Assertion: Contractors must generally obtain written permission from the Contracting Officer to assert copyright in data first produced under the contract, with a standard exception for technical or scientific articles published in professional journals.
- Marking Requirements: Data must be delivered with specific notices to protect its status. If data is delivered without a notice, it is presumed to be delivered with unlimited rights unless a correction is permitted within six months.
- Subpart Exclusivity: This subpart governs the rights to use data, but it does not specify the type or quantity of data to be delivered; that must be specified separately in the contract's Statement of Work (SOW) or deliverables list.
Responsibilities
- Contracting Officers (CO):
- Identify and specify the exact data to be delivered under the contract.
- Determine whether to use "Alternates" (I-V) to the basic Rights in Data clause (52.227-14) to force delivery of restricted or limited data.
- Review and respond to contractor requests to assert copyrights.
- Challenge unauthorized markings by making written inquiries and providing a 60-day window for justification.
- Contractors:
- Affix appropriate "Limited Rights" or "Restricted Rights" notices to qualifying data at the time of delivery.
- Request permission to assert copyright in data produced under the contract.
- Provide written justification within 60 days if the government challenges the proprietary status of their data markings.
- Program Managers/Technical Personnel:
- Verify that delivered data meets the technical requirements and that any markings are consistent with the contractor's private expense claims.
Practical Implications
- The "Use it or Lose it" Marking Rule: Contractors often lose proprietary protections simply by failing to affix the exact FAR-prescribed legend to their deliverables. If a contractor delivers data without a notice, the government assumes unlimited rights, and the burden is on the contractor to prove the omission was inadvertent within a strict 6 months timeframe.
- Contractual Gaps: A common mistake in government procurement is assuming that the presence of FAR 52.227-14 means the government will receive the data they need. Since the clause only defines rights and not deliverables, the government must explicitly list data items (like CAD drawings or source code) in the contract to actually receive them.
- Academic Flexibility: Universities and colleges performing basic research have significantly more freedom under Alternate IV, which allows them to assert copyright in data first produced under the contract without prior CO approval, fostering the dissemination of scientific knowledge.
- Negotiation Points: In high-tech acquisitions, "Alternate II" and "Alternate III" are major points of negotiation. These allow the government to demand delivery of data that the contractor would otherwise be entitled to withhold, which can create friction regarding the protection of trade secrets.