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Subpart 2-Data and copyrights

9. 200 Scope of Subpart. This Subpart sets forth NASA policy, implementing procedures, and contract clauses with respect to acquisition of data, rights in data, and copyrights.

9. 201 Definitions. For the purpose of this Subpart, the following terms have the meanings set forth below:

(a) "Data" means recorded information, such as but not limited to writings, drawings, recordings, and fictorial representations, regardless of form or the media on which it ray be recorded. The term does not include information incidental to contract administration, such as financial and business reports.

(b) "Computer Software" means data in the form of computer programs, computer data bases, and documentation thereof.

(c) "Subiect Data" means data specified to be or which are in fact delivered pursuant to a contract, and data first produced in performance of a contract.

(a) "Protectible Data" means:

(1) Data which constitute а contractor's trade secrets, but only to the extent that such data relate to items, components, or processes, including minor modifications thereof, which were developed at private expense; and (2) Computer software

software developed at private expense which has been protected by а contractor from un restricted use, duplication, or disclosure by others.

However, as to (d) (1) above, the term "protectible data" does not include training ma nuals, or instructional material for installation, operation, routine maintenance or repair.

(e) "Eorma Fite and Function Data" means data çertaining to items, conponents, OI processes which identify sources, size, configuration, mating and attachment characteristics, functional characteristics and performance requirements; except that for computer software it means source, function, and performance cata.

(f) "unlimited Rights means the right to duplicate, and disclose, in whole or in part, in any manner and for any purpose whatsoever, and have others so do.

(g) "Limited Rights" means the right to duplicate and use noncomputer software type of protectible data with the express limitation that such data will not be disclosed outside the Government nor used for purposes of manufacture without permission of the contractor; provided, however, that the Government may disclose

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NASA PROCUREMENT REGULATION

PATENTS, DATA AND COPYRIGHTS

this data for use by onsite employees of support service contractors where such contractors have agreed to protect this data from unauthorized use or cisclosure.

Thi "Restricted Rights” means that the Government may not duplicate, use, nor disclose computer software type cf protectible data except as provided in the minimum rights set forth below or such additional rights as may be provided in the contract.

The Goverma nt way:

(1) Use computer software with the computer for which it was acquired, including use at any Government installation to which the computer may be transferred;

(2) Use computer software with a backup computer if the computer for which it was acquired is inoperative;

(3) copy computer software for safekeeping (archives) cr backup purposes;

(4) Modify coraputer software or combine it with other software, subject to the provision that where the derivative software contains fortions which remain identifiable as protectible data, such portions shall te subject to the same restricted rights;

(5) Disclose computer software for use by onsite employees of support se rvice contractors, providing such contractors agree to protect such computer software from unauthorized use,

duplication or ci sclosure; and

(6) Treat computer software, if it bears a copyright notice, as a published copyrighted work licensed I without disclosure prohibitions to the Government with

minimum rights in accordance with subparagraphs (1) through (4) above.

9. 202 Acquisition of Data and Rights in Data.

9.202-1 Background. In order for NASA to carry out its statutory responsibility to perform re search and development in the fields of aeronautics and space and to provide for the widest practicable and appropriate dissemination of the results of these activities, it is necessary that NASA acquire many kinds of data developed under or used in the performance of its contracts. At the same time NASA recognizes that its contractors have a valid economic interest in data resulting from private investment. The protection of this data is desirable in order to encourage qualified contractors to participate in NASA programs. The policies, procedures, and clauses set forth herein strike a balance between NASA's needs and а contractor's equities.

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9.202-2 Policy.
(a) Acqu is ition of Data-General.

(1) Distinction between Data Acquisition and Data Fights. It is important to recognize and maintain the conceptual distinction between contract provisions whose purpose is to identify data to be delivered or furnished to the Government, and other contract provisions whose purpose is to specify the respective legal rights of the Government and the contractor in such data. Paragraphs (a), (b), and (c) herein to policy dealing with acquisition of data. Paragraphs (d) and (e) pertain to policy dealing with rights in data.

(2) Known Requirements for Data. It is NASA's policy to determine, to the extent feasible, its known requirements for data in time for inclusion in Requests for Proposals and Invitations for Bids. Such requirements for data will be further considered during negotiations and included in any resulting contract.

(3) Optional Data Reyuirements. Recognizing that NASA's requirements for data may not be determinable fully

at the time of contracting, it is NASA's policy to preserve contractual right to

later acquire additional data when such requirements have been determined.

(6) Limitation on Acquisition.

(1) When privately-developed items, components, or processes are involved in the performance of work under a contract, and the contractor has related protectible data, it is NASA's policy normally to permit the contractor to meet NASA's requirements for data by furnishing form, fit, and function data for such items, components, processes in lieu of providing the frotectible data. This policy of nornally permitting the contractor to withheld its protectible data is the Frimary means by which the contractor may protect its equitable position.

(2) In order to ascertain whether form, fit, and function data will be adequate to satisfy NASA's needs, prospective contractors will be required to identify in their proposals, to the extent feasible, any of required data which qualifies as protectible data.

The contractor's response will assist NASA in determining, prior

contracting, whether its procurement needs can be satisfied with form, fit, and function data, or whether arrangements must be made for access to such protectible da ta.

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NASA PROCUREMENT REGULATION

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(3) NASA's policy of normally permitting its contractors to furnish form, fit, and function data in lieu of protectible data does not extend to contracts cr elements thereof which have as a significant requirement the development of computer software. It is NASA policy in these procurements to require the delivery of all computer software specified in the contract. In those instances where the contractor has a significant equitable position in the computer software, contract provi sions may provide for portions of the software to be subject to restricted rights.

(c) Acquisition of Proteçtible Data. Normally, under NASA's policy, protectible data may be withheld by the contractor, provided that form, fit, and function data is furnished in its place. This policy futs the least burden on the Governmant: in regards to its obligation to safeguard protectible data, and affords the maximum protection to the contractor. Therefore, this is NASA'S preferred contracting approach. It is recognized, however, that there will be certain instances where KASA's procurement needs cannot be met unless there is access to a contractor's protectible data. In those special instances it is NASA policy to provide contract provisions which will permit NASA to require delivery cf protectible data with limited and/or restricted rights. The Government's agreement to use the protectible data only for authorized purposes constitutes an alternate means by which the contractor aay protect its equitable position.

(d) Rights in Data-Government. In general, it is NASA policy to cbtain unlimited rights in all subject data. However, if a contractor's protectible data is to be furnished under contract, it normally may be furnished with limited rights or restricted rights,

as appropriate. If greater rights are needed by the Government in such protectible data a separate fair price will be negotiated. In no instance will NASA require a contractor to forfeit

its rights protectible data as condition of receiving а contract.

while protection is available for data contained in contract proposa ls during the period of evaluation, it is NASA policy to obtain unlimited rights in the technical data contained in successful proposals. However, such rights normally will not extend to portions of the proposal not contracted for, nor for data which qualifies as protectible data.

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NASA reserves the right to correct, cancel, or ignore any unauthorized notice ΟΥ legend on data received under contracts. NASA will, however, if circumstances permit, advise the contractor before any such actions are taken.

(e) Rights in Data-contractors. In general, NASA contractors have the right to use, duplicate, and cisclose data which they first froduce under NASA contracts. Also, NASA contractors normally have the right to withhcld and not furnish their protectible data. In those cases where protectible data is specifically identified in the contract ard is required to be furnished under paragraph (f) and/or (g) of either of the "Rights in Data" clauses, or the contracting officer makes a specific written request for such data under the paragraphs, NASA contractors have the right to affix a "Restrictive Rights" or a "Limited Rights" notice to such data.

Contractors have the right to copyright scientific and technical articles based on the work performed under NASA contracts and published in an academic or technical journal. On a case-by-case basis contractors may be permitted

permitted to copyright other naterial or data | first produced under a contract. In certain types of procurements contractors will be required to obtain NASA approval prior to publishing or releasing computer software first produced under contract.

(f) Copyright.

(1) Data First Produced Under Contract. Contractors aust ohtain NASA approval prior to copyrighting data first produced under contract. Approvals will be granted where it is established that such copyright will best serve NASA's statutory obligation to provide for the widest practicable ard appropriate dissemination of NASA-developed information. NASA reserves for the Government, and others acting on its tehalf, a royalty-free, nonexclusive, irrevocable, worldwide license for Governmental purposes to publish, distribute, translate, copy, exhibit, and perform any such data copyrighted by the contractor.

(2) Data Not First Produced | Under Contract. As a general rule, contractors shall not incorporate copyrighted material in subject data not first produced under its contract unless:

(i) the contractor grants to the Government, and cthers acting on its behalf, without expense to the Government, a royalty-free, nonexclusive, irrevocalbe, worldwide license for Governmental purposes, to

NASA PROCUREMENT REGULATION

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