(a) Pursuant to 28 U.S.C. 1498, the exclusive remedy for patent or copyright infringement by or on behalf of the Government is a suit for monetary damages against the Government in the Court of Federal Claims. No injunctive relief is available, and no direct cause of action lies against a contractor that is infringing a patent or copyright with the authorization or consent of the Government (e.g., while performing a contract).

(b) The Government may expressly authorize and consent to a contractor's use or manufacture of inventions covered by U.S. patents by inserting the clause at 52.227-1, Authorization and Consent.

(c) Because of the exclusive remedies granted in 28 U.S.C. 1498, the Government requires notice and assistance from its contractors regarding any claims for patent or copyright infringement by inserting the clause at 52.227-2, Notice and Assistance, Regarding Patent and Copyright Infringement.

(d) The Government may require a contractor to reimburse it for liability for patent infringement arising out of a contract for commercial products or commercial services by inserting the clause at 52.227-3, Patent Indemnity.

(a)

(1)Insert the clause at 52.227-1, Authorization and Consent, in solicitations and contracts except that use of the clause is—

(i) Optional when using simplified acquisition procedures; and

(ii) Prohibited when both complete performance and delivery are outside the United States.

(2) Use the clause with its Alternate I in all R&D solicitations and contracts for which the primary purpose is R&D work, except do not use this alternate in construction and architect-engineer contracts unless the contract calls exclusively for R&D work.

(3) Use the clause with its Alternate II in solicitations and contracts for communication services with a common carrier where the services are unregulated and not priced by a tariff schedule set by a regulatory body.

(b) Insert the clause at 52.227-2, Notice and Assistance Regarding Patent and Copyright Infringement, in all solicitations and contracts that include the clause at 52.227-1, Authorization and Consent.

(c)

(1) Insert the clause at 52.227-3, Patent Indemnity, in solicitations and contracts that may result in the delivery of commercial products or the provision of commercial services, unless—

(i) Part 12 procedures are used;

(ii) The simplified acquisition procedures of Part 13 are used;

(iii) Both complete performance and delivery are outside the United States; or

(iv) The contracting officer determines after consultation with legal counsel that omission of the clause would be consistent with commercial practice.

(2) Use the clause with either its Alternate I (identification of excluded items) or II (identification of included items) if—

(i) The contract also requires delivery of items that are not commercial products or the provision of services that are not commercial services; or

(ii) The contracting officer determines after consultation with legal counsel that limitation of applicability of the clause would be consistent with commercial practice.

(3) Use the clause with its Alternate III if the solicitation or contract is for communication services and facilities by a common carrier, and the services are unregulated and are not priced by a tariff schedule set by a regulatory body.

(d)

(1) Insert the clause at 52.227-4, Patent Indemnity—Construction Contracts, in solicitations and contracts for construction or that are fixed-price for dismantling, demolition, or removal of improvements. Do not insert the clause in contracts solely for architect-engineer services.

(2) If the contracting officer determines that the construction will necessarily involve the use of structures, products, materials, equipment, processes, or methods that are nonstandard, noncommercial, or special, the contracting officer may expressly exclude them from the patent indemnification by using the clause with its Alternate I. Note that this exclusion is for items, as distinguished from identified patents (see paragraph (e) of this subsection).

(e) When in the Government’s interest, the agency head may exempt specific U.S. patents, as distinguished from items, from the patent indemnity clause. Upon written approval of the agency head, the contracting officer may insert the clause at 52.227-5, Waiver of Indemnity, in solicitations and contracts in addition to the appropriate patent indemnity clause.

(f) When in the Government’s interest, the contracting officer may include a patent indemnity clause not otherwise prescribed in the solicitation and contract.

(a)

(1) Insert a solicitation provision substantially the same as the provision at 52.227-6, Royalty Information, in—

(i) Any solicitation that may result in a negotiated contract for which royalty information is desired and for which certified cost or pricing data are obtained under 15.403; or

(ii) Sealed bid solicitations only if the need for such information is approved at a level above the contracting officer as being necessary for proper protection of the Government's interests.

(2) If the solicitation is for communication services and facilities by a common carrier, use the provision with its Alternate I.

(b) If the clause at 52.227-6 is not included in the solicitation, the contracting officer may require offerors to provide information sufficient to provide this notice to the other offerors.

(c) Insert the clause at 52.227-9, Refund of Royalties, in negotiated fixed-price solicitations and contracts when royalties may be paid under the contract. For fixed-price incentive contracts, change “price” to “target cost and target profit” wherever it appears in the clause. The clause may be used in cost-reimbursement contracts where agency approval of royalties is necessary to protect the Government's interests.

(a)Unauthorized disclosure of classified subject matter, whether in patent applications or resulting from the issuance of a patent, may violate 18 U.S.C. 792, et seq. (Chapter 37—Espionage and Censorship), and related statutes, and may be contrary to national security interests.

(b) Upon receipt of a patent application under paragraph (a) or (b) of the clause at 52.227-10, Filing of Patent Applications—Classified Subject Matter, ascertain the proper security classification of the patent application. If the application contains classified subject matter, inform the contractor how to transmit the application to the United States Patent Office in accordance with procedures provided by legal counsel. If the material is classified “Secret” or higher, notify the contractor within 30 days, if possible, of the Government's determination, pursuant to paragraph (a) of the clause.

(c) Upon receipt of information furnished by the contractor under paragraph (d) of the clause at 52.227-10, promptly submit that information to legal counsel regarding the security of the application.

Insert the clause at 52.227-10, Filing of Patent Applications—Classified Subject Matter, in all classified solicitations and contracts and in all solicitations and contracts where the nature of the work reasonably might result in a patent application containing classified subject matter.

(a)[Reserved]

(b) Exceptions.

(1) Before using any of the exceptions under 27.303(e)(1) in a contract with a small business concern or a nonprofit organization and before using the exception of 27.303(e)(1)(ii) for any contractor, the agency must follow applicable procedures at 37 CFR 401.

(2) A small business concern or nonprofit organization is entitled to an administrative review of the use of the exceptions at 27.303(e)(1)(i) through (e)(1)(iv) in accordance with agency procedures and 37 CFR part 401.

(c) Greater rights determinations. Whenever the contract contains the clause at 52.227-13, Patent Rights—Ownership by the Government, or a patent rights clause modified pursuant to 27.303(e)(2), the contractor (or an employee-inventor of the contractor after consultation with the contractor) may request greater rights to an identified invention within the period specified in the clause. The contracting officer may grant requests for greater rights if the contracting officer determines that the interests of the United States and the general public will be better served. In making these determinations, the contracting officer must consider at least the following objectives (see 37 CFR 401.3(b)):

(1) Promoting the utilization of inventions arising from federally supported research and development.

(2) Ensuring that inventions are used in a manner to promote full and open competition and free enterprise without unduly encumbering future research and discovery.

(3) Promoting public availability of inventions made in the United States by United States industry and labor.

(4) Ensuring that the Government obtains sufficient rights in federally supported inventions to meet the needs of the Government and protect the public against nonuse or unreasonable use of inventions.

(d) Retention of rights by inventor. If the contractor elects not to retain title to a subject invention, the agency may consider and, after consultation with the contractor, grant requests for retention of rights by the inventor. Retention of rights by the inventor will be subject to the conditions in paragraphs (d) (except paragraph (d)(1)(i)), (e)(4), (f), (g), and (h) of the clause at , Patent Rights-Ownership by the Contractor.

(e) Government assignment to contractor of rights in Government employees’ inventions. When a Government employee is a co-inventor of an invention made under a contract with a small business concern or nonprofit organization, the agency employing the co-inventor may license or assign whatever rights it may acquire in the subject invention from its employee to the contractor, subject at least to the conditions of 35 U.S.C. 202-204.

(f) Revocation or modification of contractor’s minimum rights. Before revoking or modifying the contractor's license, the contracting officer must furnish the contractor a written notice of intention to revoke or modify the license. The agency must allow the contractor at least 30 days (or another time as may be authorized for good cause by the contracting officer) after the notice to show cause why the license should not be revoked or modified. The contractor has the right to appeal, in accordance with applicable regulations in 37 CFR part 404 and agency licensing regulations, any decisions concerning the revocation or modification.

(g) Exercise of march-in rights. When exercising march-in rights, agencies shall follow the procedures set forth in 37 CFR 401.6.

(h) Licenses and assignments under contracts with nonprofit organizations. If the contractor is a nonprofit organization, paragraph (i) of the clause at provides that certain contractor actions require agency approval.

Apply the following procedures unless an interagency agreement provides otherwise:

(a) When a Government agency requests another Government agency award a contract on its behalf, the request should explain any special circumstances surrounding the contract and specify the patent rights clause. The clause should be selected and modified, if necessary, in accordance with the policies and procedures of this subpart. If, however, the request states that a clause of the requesting agency is required (e.g., because of statutory requirements, a deviation, or exceptional circumstances), then use that clause rather than those of this subpart.

(1) If the request states that an agency clause is required and the work to be performed under the contract is not severable and is funded wholly or in part by the requesting agency, then use the requesting agency clause and no other patent rights clause in the contract.

(2) If the request states that an agency clause is required, and the work to be performed under the contract is severable, then apply the requesting agency clause only to the severable portion of the work. Apply the appropriate patent rights clause to the work for the awarding agency.

(3) If the request states that a requesting agency clause is not required in any resulting contract, then use the appropriate patent rights clause, if any.

(b) Any action requiring an agency determination, report, or deviation involved in the use of the requesting agency's clause is the responsibility of the requesting agency unless the agencies agree otherwise. However, do not alter the requesting agency's clause without prior approval of the requesting agency.

(c) The requesting agency may require, and provide instructions regarding, the forwarding or handling of any invention disclosures or other reporting requirements of the specified clauses. Normally, the requesting agency is responsible for the administration of any subject inventions. Establish this responsibility before awarding any contracts.

(a) The policies and procedures in this subpart apply to all subcontracts at any tier.

(b) Whenever a prime contractor or a subcontractor considers including a particular clause in a subcontract inappropriate, or a subcontractor refuses to accept the clause, consult with counsel before resolving the matter.

(c) Government policy holds that contractors must not use their ability to award subcontracts as economic leverage to acquire rights for themselves in inventions resulting from subcontracts.

(a) The designated agency official must provide the contractor with a written statement of the basis, including any relevant facts, for taking any of the following actions:

(1) A refusal to grant an extension to the invention disclosure period under paragraph (c)(4) of the clause at ;

(2) A demand for a conveyance of title to the Government;

(3) A refusal to grant a waiver of requirements in the patent rights clause related to Preferences for United States industry; or

(4) A refusal to approve an assignment under 27.304-1(h).

(b) Each agency may establish and publish procedures under which any of these actions may be appealed. These appeal procedures should include administrative due process procedures and standards for fact-finding. The resolution of any appeal must consider both the factual and legal basis for the action and its consistency with the policy and objectives of 35 U.S.C. 200- 206 and 2 10.

(c) To the extent that any of the actions described in paragraph (a) of this section are subject to appeal under the Contract Disputes statute, the procedures under that statute will satisfy the requirements of paragraph (b).

The Government acquires unlimited rights in the following data except for copyrighted works as provided in 27.404-3:

(a) Data first produced in the performance of a contract (except to the extent the data constitute minor modifications to data that are limited rights data or restricted computer software).

(b) Form, fit, and function data delivered under contract.

(c) Data (except as may be included with restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under a contract.

(d) All other data delivered under the contract other than limited rights data or restricted computer software (see 27.404-2).

(a) General. The basic clause at , Rights in Data-General, enables the contractor to protect qualifying limited rights data and restricted computer software by withholding the data from the Government and instead delivering form, fit, and function data.

(b) Alternate definition of limited rights data. For contracts not requiring the development, use, or delivery of items, components, or processes intended to be acquired by or for the Government, an agency may adopt the alternate definition of limited rights data set forth in Alternate I to the clause at 52.227-14. The alternate definition does not require that the data pertain to items, components, or processes developed at private expense. The alternate definition instead requires that the data were developed at private expense and embody a trade secret or are commercial or financial and confidential or privileged.

(c) Protection of limited rights data specified for delivery.

(1) The clause at 52.227-14 with its Alternate II enables the Government to require delivery of limited rights data rather than allow the contractor to withhold the data. To obtain delivery, the contract may identify and specify data to be delivered, or the contracting officer may require, by written request during contract performance, the delivery of data that has been withheld or identified to be withheld under paragraph (g)(1) of the clause. In addition, the contract may specifically identify data that are not to be delivered under Alternate II or that, if delivered, will be delivered with limited rights. The limited rights obtained by the Government are set forth in the Limited Rights Notice contained in paragraph (g)(3) of Alternate II. Agencies must not, without permission of the contractor, use limited rights data for purposes of manufacture or disclose the data outside the Government except as set forth in the Notice. Any disclosure by the Government must be subject to prohibition against further use and disclosure by the recipient. Here follow examples of specific purposes an agency may adopt in its supplement and added to the Limited Rights Notice of paragraph (g)(3) of Alternate II of the clause:

(i) Use (except for manufacture) by support service contractors.

(ii) Evaluation by nongovernment evaluators.

(iii) Use (except for manufacture) by other contractors participating in the Government’s program of which the specific contract is a part.

(iv) Emergency repair or overhaul work.

(v) Release to a foreign government, or its instrumentalities, if required to serve the interests of the U.S. Government, for information or evaluation, or for emergency repair or overhaul work by the foreign government.

(2) The provision at 52.227-15, Representation of Limited Rights Data and Restricted Computer Software, helps determine use of the clause at 52.227-14 with its Alternate II by requesting the offeror state whether limited rights data are likely to be delivered. Where limited rights data are expected to be delivered, use Alternate II. Where negotiations are based on an unsolicited proposal, address the need for Alternate II of the clause at 52.227-14 during negotiations or discussions, and include Alternate II by modification, if needed, during contract performance.

(3) If data that would otherwise qualify as limited rights data is delivered as a computer database, treat the data as limited rights data, rather than restricted computer software, for the purposes of paragraph (g) of the clause at 52.227-14.

(d) Protection of restricted computer software specified for delivery.

(1) Alternate III of the clause at 52.227-14, enables the Government to require delivery of restricted computer software rather than allow the contractor to withhold such software. To obtain delivery of restricted computer software—

(i) Identify and specify the deliverable computer software in the contract; or

(ii) Require by written request during contract performance, the delivery of computer software that has been withheld or identified to be withheld under paragraph (g)(1) of the clause.

(2) In considering whether to use Alternate III, note that, unlike other data, computer software is itself also an end item. Therefore, use Alternate III where the contract requires delivery of restricted computer software.

(3) Unless otherwise agreed (see paragraph (d)(4) of this subsection), the restricted rights the Government obtains are set forth in the Restricted Rights Notice contained in paragraph (g)(4) (Alternate III). The Government will not use or reproduce such restricted computer software, or disclose it outside the Government, except that the Government may—

(i) Use or copy the software for the computers for which it was acquired, including use at any Government installation to which the computers may be transferred;

(ii) Use or copy the software for a backup computer if any computer for which it was acquired is inoperative;

(iii) Reproduce the software for safekeeping (archives) or backup purposes;

(iv) Modify, adapt or combine the software with other computer software, provided that the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, restricted computer software must be subject to the same restricted rights;

(v) Disclose to and reproduce the software for use by support service contractors or their subcontractors, in accordance with paragraphs (3)(i) through (iv) of this section; and

(vi) Use or copy the software for a replacement computer.

(4) The restricted rights set forth in paragraph (d)(3) of this subsection comprise the minimum rights the Government normally obtains with restricted computer software and will automatically apply when the Government acquires such software under the Restricted Rights Notice of paragraph (g)(4) of Alternate III of the clause at 52.227-14. However, the contracting officer may specify different rights in the contract, consistent with the purposes and needs for which the software is to be acquired. For example, the contracting officer should consider any networking needs or any requirements for use of the computer software from remote terminals. Also, in addressing such needs, the scope of the restricted rights may differ for the documentation accompanying the computer software than for the programs and databases. The contract, or a collateral agreement incorporated in and made part of the contract, must expressly state any additions to, or limitations on, the restricted rights set forth in the Restricted Rights Notice of paragraph (g)(4) of Alternate III of the clause at 52.227-14; modify the notice accordingly.

(5) The provision at 52.227-15, Representation of Limited Rights Data and Restricted Computer Software, helps determine use of the clause at 52.227-14 with its Alternate III by requesting the offeror state whether restricted computer software is likely to be delivered under the contract. In addition, address the need for Alternate III during negotiations or discussions with an offeror, particularly negotiations upon an unsolicited proposal. However, add Alternate III by modification, if needed, during contract performance.

(a) Data first produced in the performance of a contract.

(1) Generally, the contractor must obtain permission from 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 such prior permission, 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 to the contracting officer 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, 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) Government intends primarily to use the data internally;

(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 conducted at those facilities, or where international agreements require otherwise, use Alternate IV in all contracts for basic or applied research performed solely by colleges and universities. Do not use Alternate IV in contracts with colleges and universities if a purpose of the contract is development of computer software for distribution to the public (including use in solicitations) by or on behalf of the Government. In addition, use Alternate IV in other contracts, as needed, if an agency determines that further permission to assert copyright in data first produced in performance of the contract is unnecessary. Exclude, as necessary, any data, or items or categories of data, from the provisions of Alternate IV expressly in the contract or otherwise add 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 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 must 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 cover, or first page, of the report must state the terms of the license.

(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 must 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 paragraph (c)(2) of the clause at 52.227-14 sets forth the license. However, agencies may obtain a license of different scope if the agency determines, after consultation with legal counsel, that such different license will accord with the purpose of acquiring the data. Both the contract and the data when delivered to the Government must clearly state that a license of a different scope applies. If the contractor delivers computer software not first produced under the contract, the contractor must 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.

(a) In contracts for basic or applied research with universities or colleges, agencies must not restrict the conduct of or reporting on the results of unclassified basic or applied research, except as provided in applicable U.S. statutes. However, agencies may restrict the release or disclosure of computer software that is or is intended to be developed to the point of practical application (including for agency distribution under established programs). This is not a restriction on the reporting of the results of basic or applied research. Agencies may also preclude a contractor from asserting copyright in any computer software for purposes of established agency distribution programs, or where required to accomplish the purpose for acquiring the software.

(b) Except for the results of basic or applied research under contracts with universities or colleges, agencies may, to the extent provided in their FAR supplements, place limitations or restrictions on the contractor's exercise of its rights in data first produced in the performance of the contract, including a requirement to assign copyright to the Government or another party. Include any of these restrictions in the contract.

(a) Unauthorized marking of data.

(1) The Government has, in accordance with paragraph (e) of the clause at 52.227-14, the right either to return data containing unauthorized markings or to cancel or ignore the markings.

(2) Agencies must not cancel or ignore markings without making written inquiry of the contractor and affording the contractor at least 60 days to provide a written justification substantiating the propriety of the markings.

(i) If the contractor either fails to respond or fails to provide a written justification substantiating the propriety of the markings within the time afforded, the Government may cancel or ignore the markings.

(ii) If the contractor provides a written justification substantiating the propriety of the markings, consider the justification.

(A) Upon determining that the markings are authorized, notify the contractor in writing.

(B) If the contracting officer determines, with concurrence of the head of the contracting activity, that the markings are not authorized, furnish the contractor a written determination regarding the appropriateness of the markings. The determination must state that the Government will cancel or ignore the markings, and that the data will no longer be subject to disclosure prohibitions, unless the contractor files suit within 90 days in a court of competent jurisdiction. Absent such a suit, the contracting officer's determination ordinarily becomes the final agency decision. Therefore, do not cancel or ignore the markings until final resolution of the matter, either by the determination becoming the final agency decision or by final disposition of the matter by court decision if the contractor files suit.

(3) Modify the foregoing procedures in accordance with agency regulations implementing the Freedom of Information Act (5 U.S.C. 552) as necessary to respond to a request. In addition, the contractor may bring a claim, in accordance with the Disputes clause of the contract, that may arise as the result of the Government's action to remove or ignore any markings on data, unless the action occurs as the result of a final disposition of the matter by a court of competent jurisdiction.

(b) Omitted or incorrect notices.

(1) For data delivered under a contract containing the clause without a limited rights notice or restricted rights notice, and without a copyright notice, presume the contractor delivered the data with unlimited rights, and the Government assumes no liability for the disclosure, use, or reproduction of the data. However, to the extent the data has not been disclosed without restriction outside the Government, the contractor may, within 6 months (or a longer period approved by the contracting officer for good cause shown), request permission of the contracting officer to have the omitted limited rights or restricted rights notices, as applicable, placed on qualifying data at the contractor's expense. The contracting officer may permit adding appropriate notices if the contractor—

(i) Identifies the data for which a notice would be added;

(ii) Demonstrates that the omission of the proposed notice was inadvertent;

(iii) Establishes that use of the proposed notice is authorized; and

(iv) Acknowledges that the Government has no liability with respect to any disclosure or use of any such data made prior to the addition of the notice or resulting from the omission of the notice.

(2) The contracting officer may also-

(i) Permit correction, at the contractor’s expense, of incorrect notices if the contractor identifies the data on which correction of the notice is to be made, and demonstrates that the correct notice is authorized; or

(ii) Correct any incorrect notices.

Contracting officers may obtain the right to inspect data at the contractor's facility by use of the clause at 52.227-14 with its Alternate V, which adds paragraph (j) to provide that right. Agencies may also adopt Alternate V for general use. The data subject to inspection may be data withheld or withholdable under paragraph (g)(1) of the clause. The contracting officer or designee (including nongovernmental personnel under the same conditions as the contracting officer) may inspect data at the contractor's facility to verify a contractor's assertion regarding the limited rights or restricted rights status of the data, or for evaluating work performance under the contract. The Government may exercise this right up to 3 years after acceptance of all items to be delivered under the contract. The contract may specify data items not subject to inspection under paragraph (j) of the Alternate. If the contractor demonstrates to the contracting officer that a conflict of interest would possibly result if inspection were made by a particular representative, then designate an alternate representative.

(a)Contracts primarily for the production or compilation of data first produced in the performance of the contract (or special works) for the Government's own use, must specifically address the Government's rights to use, disclose, modify, distribute, and reproduce the special works. This may include negotiation of terms limiting distribution and use of special works or obtaining indemnity for liabilities that might arise out of the content, performance, or disclosure of special works. The contract may specify the purposes and conditions (including time limitations) under which the contractor may use, release, or reproduce the special works other than for contract performance.

(b) Contracts for the production of audiovisual works, sound recordings, etc., may include limitations and authorizations in connection with talent releases, music licenses, and the like that are consistent with the purposes for which the works are acquired.

(c) This subsection does not apply to limited rights data or to restricted computer software (see 27.404-2).

(d) Examples of special works include—

(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, soundtracks, 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; and

(9) The development of computer software programs, where the program is agency-mission sensitive, and release could prejudice agency mission, programs, or follow-on acquisitions.

(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 specially negotiate rights in special works 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.

For contracts exclusively for the acquisition of existing works (without modification), such as motion pictures, television recordings, and other audiovisual works; sound recordings; musical, dramatic, and literary works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; and works of a similar nature, the contract must specifically address the Government's rights to use, disclose, modify, distribute, and reproduce the existing works. Agencies are authorized to specially negotiate rights in existing works. This includes limitations consistent with the purposes for which the government seeks to acquire the contract. Examples of these limitations include means of exhibition or transmission, time, type of audience, and geographical location. However, if the contract requires that works of the type indicated in this paragraph are to be modified through editing, translation, or addition of subject matter, etc. (rather than purchased in existing form), then see 27.405-1.

(a) When acquiring commercial computer software, no specific contract clause prescribed in this subpart is necessary, but the contract must specifically address the Government's rights to use, disclose, modify, distribute, and reproduce the software. Part 12 states guidance for acquisition of commercial computer software, and it states that commercial computer software or commercial computer software documentation must be acquired under licenses customarily provided to the public to the extent the license is consistent with Federal law and otherwise satisfies the Government's needs. In addition, the contract must adequately describe the computer programs and/or databases, the media on which it is recorded, and all the necessary documentation.

(b) If the contract incorporates, refers to, or uses a vendor's standard commercial lease, license, or purchase agreement, ensure that the agreement is consistent with paragraph (a) of this subsection. Exercise caution in accepting a vendor's terms and conditions, because they might pertain to commercial sales and might therefore be inappropriate for Government contracts. Address in the contract any inconsistencies in a vendor's standard commercial agreement, and the contract terms must take precedence over the vendor's standard commercial agreement.

(c) If a prime contractor under a contract containing the clause at 52.227-14, Rights in Data—General, with paragraph (g)(4) (Alternate III) in the clause, acquires restricted computer software from a subcontractor (at any tier) as a separate acquisition for delivery to or for use on behalf of the Government, the contracting officer may approve any additions to, or limitations on the restricted rights in the Restricted Rights Notice of paragraph (g)(4) in a collateral agreement incorporated in and made part of the contract.

(a) No clause contained in this subpart is required for—

(1) Contracts solely for the acquisition of books, periodicals, and other printed items in the exact form in which these items are to be obtained unless reproduction rights are to be acquired; or

(2) Other contracts that require only existing data (other than limited rights data) to be delivered and the data are available without disclosure prohibitions, unless reproduction rights to the data are to be obtained.

(b) Specifically state such rights in the contract. No clause contained in this subpart is required for contracts substantially for on-line data base services in the same form as they are normally available to the general public.

(a) [Reserved]

(b) Specify in the contract all known data requirements, including the time and place for delivery and any limitations and restrictions on the contractor for handling the data. Further, and to the extent feasible, in major system acquisitions, state data requirements as separate line items. In establishing the contract data requirements and in specifying data items for delivery under the contract, agencies may develop their own contract schedule provisions. Agency procedures may, among other things, provide for listing, specifying, identifying source, assuring delivery, and handling any data required to be delivered, first produced, or specifically used in the performance of the contract.

(c) [Reserved]

(a) In some situations, such as experimental, developmental, research, or demonstration contracts, ascertaining all data requirements at contract award might be unfeasible. Use the clause at 52.227-16, Additional Data Requirements, as necessary to enable subsequent ordering of additional data first produced or specifically used in the performance of these contracts as the actual requirements become known. Normally use the clause in solicitations and contracts involving experimental, developmental, research or demonstration work (other than basic or applied research to be performed under a contract solely by a university or college when the contract amount will be $500,000 or less) unless all the requirements for data are believed known at the time of contracting and the contract specifies them. If the contract is for basic or applied research to be performed by a university or college, and the contracting officer believes the contract effort will in the future exceed $500,000, even though the initial award does not, include as necessary the clause in the initial award.

(b) The clause at 52.227-16 allows ordering data at any time during contract performance or within a period of 3 years after acceptance of all items to be delivered under the contract. Compensate the contractor for converting the data into the prescribed form, for reproduction, or for delivery. To minimize storage costs for the retention of data, the relieve as necessary the contractor of the retention requirements for specified data items at any time during the retention period required by the clause. Permit as necessary the contractor to identify and specify in the contract data not to be ordered for delivery under the clause if the data is not necessary to meet the Government's requirements for data. Also, alter as necessary the clause by deleting the term “or specifically used” in paragraph (a) of the clause if delivery of the data is unnecessary to meet the Government's data requirements. Any data ordered under this clause will be subject to the clause at 52.227-14, Rights in Data—General, (or other equivalent clause setting forth the respective rights of the Government and the contractor) in the contract. Data authorized to be withheld under such clause will not be required to be delivered under the clause at 52.227-16, except as provided in Alternate II or Alternate III, if included (see 27.404-2(c) and (d)).

(c) Absent an established program for dissemination of computer software, agencies should not order additional computer software under the clause at 52.227-16 for the sole purpose of disseminating or marketing the software to the public. In ordering software for internal purposes, consider, consistent with the Government's needs, not ordering particular source codes, algorithms, processes, formulas, or flow charts of the software where the contractor shows that these aid its efforts to disseminate or market the software.

(a) The clause at 52.227-21, Technical Data Declaration, Revision, and Withholding of Payment—Major Systems, implements 41 U.S.C. 2302(e). When using the clause at 52.227-21, the section of the contract specifying data delivery requirements (see 27.406-1(b)) must expressly identify those line items of technical data to which the clause applies. Upon delivery of the technical data, review the technical data and the contractor's declaration relating to it to assure that the data are complete, accurate, and comply with contract requirements. If the data are not complete, accurate, or compliant, request the contractor to correct the deficiencies and withhold payment as necessary. Do not make final payment under the contract until determining that the delivery requirements of those line items of data to which the clause applies have been satisfactorily met.

(b) In a contract for, or in support of, a major system awarded by a civilian agency other than NASA or the U.S. Coast Guard, the following applies:

(1) Require the delivery of any technical data relating to the major system or supplies for the major system, that are to be developed exclusively with Federal funds where delivery of the technical data is needed to ensure competitive acquisition of supplies or services required in substantial quantities in the future. Use the clause at 52.227-22, Major System—Minimum Rights, in addition to the clause at 52.227-14, Rights in Data—General, and other required clauses, to ensure that the Government acquires at least those rights required by Pub. L. 98-577 in technical data developed exclusively with Federal funds.

(2) Do not require a person that has developed a product or process, offered or to be offered for sale to the public, to provide technical data relating to a major system, or to supplies for a major system, that also relates to the design, development or manufacture of the product or process, as a condition of procurement of the product or process. This prohibition does not apply to such data that might be necessary for the Government to operate or maintain the product, or to use the process, where the Government obtains the data during contract performance.