PATENTS, DATA AND COPYRIGHTS (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 tc 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 provisions may provide for portions of the software to be subject to restricted rights. (c) Acquisition of Protectible 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 puts 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 NASA'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 may 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 to protectible data as a condition of receiving a contract. While protection is available for data contained in contract proposals 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 Fortions of the proposal not contracted for, nor for data which qualifies as protectible data. CFR TITLE 41 CHAPTER 18 DATA AND COPYRIGHTS NASA reserves the right to correct, cancel, or ignore any unauthorized notice or legend on data received under contracts. NASA will, however, if circumstances permit, advise the contractor before any such actions are taken. NASA (e) Rights in Data-Contractors. In general, contractors have the right to use, duplicate, and disclose data which they first Frcduce under NAS A contracts. Also, NASA contractors normally have the right to withhold and not furnish their protectible data. In those cases where protectible data is specifically identified in the contract and is required to be furnished under paragraph (f) and/or (g) of either of the "Rights in Data" clauses, 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. or the Contractors have the right to copyright scientific and technical articles based on the work work performed under NASA contracts and published in an academic or technical journal. On a case-by-case basis contractors may be permitted to copyright other material 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 must obtain 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 PATENTS, DATA AND COPYRIGHTS publish, distribute, translate, copy, exhibit, and Ferform such copyrighted subject data; or (ii) the contractor obtains the written permission of the contracting officer; or (iii) with respect to computer software type of protectible data, other rights are specified in the contract. 9.202-3 Procedures. and (a) Procedure for Determining NASA's Requirements for Data. As part of determining the contract requirements, the cognizant technical office shall determine what cata will be required during contract performance, when it shall be delivered. These requirements and delivery schedule will be made known to the contracting officer in time for inclusion in requests for proposals and invitations for bids. The requirements may, for example, include progress reports, maintenance manuals, ċetailed technical drawings, quality assurance plans, and many other kinds of data. It is necessary that all data to be furnished be specified in the contract as a requirement. In order to avoid unnecessary costs, it is also important that the contract requirements for data te limited to the Government's real needs. Thus, the determination of contract requirements for data must be individually considered for each procurement. (b) Procedure for Considering a Contractor's Request to Copyright. Under NASA's policy, contractors may be granted permission to copyright data first produced under their contracts where such copyright will best serve NASA's statutory obligation to provide for the widest practicable and appropriate dissemination of NASA development information. A contractor must request such permission in writing from the contracting cfficer. This request shall identify or furnish a copy cf the data which he desires to copyright and provide his plans and intentions for publication and dissemination. The contracting officer shall forward the request to the installation patent counsel who, after consultation with appropriate officials, will advise the contracting officer as to whether permission is recommended. Where permission is granted the contractor will be required to include a credit line on the copyrighted material to insure that members of the public as well as interested Government personnel are given notice of Government rights in the published work as provided for in the contract. NASA normally will not grant permission to the contractor to copyright in the following situations: CFR TITLE 41 CHAPTER 18 DATA AND COPYRIGHTS (i) the work consists of a report which represents the official views of the agency or which the agency is required to prepare by statute; or (ii) the work is intended primarily for internal use by the Government; or (iii) the work is a computer program, computer data tase, or documentation relating thereto which NASA intends to disseminate to the public. (c) Procedure for Determining Need for Including Faragraphs (f) and/or (g) in the "Rights in DataGeneral" Clause (9.203-3).As explained in 9.202-2 (b), NASA contracts normally permit contractors to satisfy contract requirements for data by furnishing form, fit, and function data in lieu of protectible data. However, where a real need is established for access to a contractor's protectible data, paragraphs (f) and/or (g) of 9.203-3 (b) and (c) may be added to the "Rights in Data-General" clause which then permits NASA to call up protectible data under limited rights or restricted rights conditions. To provide visibility, and as an aid in determining when a real need exists, NASA RFP's instruct proposers to state in the proposal that the contract requirements for data have been reviewed, and further, shall either (1) state that none of the required data qualifies as protectible data, or (2) identify which of the required data qualifies as protectible data. If required data is identified in the proposal as protectible, the cognizant technical officer shall determine whether the contract objectives can be met with form, fit, and function data. If not, the rationale for requiring access to protectible data shall be documented in a request to the installation Procurement Officer for authority to include paragraphs (f) and/or (g) in the "Rights in Data-General" clause. The Procurement Officer, after consulting with patent counsel, may authorize inclusion of one or both Faragraphs upon his determination that a real need exists. In any case, the question of whether any of the required data qualifies protectible data will be specifically discussed during contract negotiations to assure that both parties have a clear understanding of the other's position, and the results of such discussion shall be reflected in the minutes of the regotiation. (d) Procedure for Faragraphs (f) and/or as Acquiring Protectible Data Under (g) of the "Rights in DataNASA has adopted the General" Clause (9.203-3). NASA PROCUREMENT REGULATION PATENTS, DATA AND COPYRIGHTS means "withholding" approach as the primary for protecting a contractor's protectible data. (See 9.2022 (b) and (c) above). The fact that cfticnal paragraph (f) and/or (g) may be added to the "Rights in DataGeneral" clause does not change this fact. If a contractor wishes to continue protection of its Frotectible data, it must still comply with the withholding provisions of paragraph (e) of that clause. Contractors are not authorized to affix a "Limited Ikights" notice or a "Restricted kights" rctice on any ċata unless and until the contracting officer has made a written request pursuant to paragraph (f) and/or (g) for data specifically identified, or the contract specifically provides that the data is required to be delivered and the data is specifically identified as authorized for delivery with either "limited" or "restricted rights." Marked data submitted under contract without such specific authorizations shall be treated as data is required to be delivered and the data is specifically identified as authorized for delivery with either "limited" or "restricted rights." Accordingly, it is important that this procedure be followed carefully. The acquisition of a contractor's protectible data with limited or restricted rights carries with it an chligation on the part of all NASA employees who may have access to such data to safeguard it against unauthorized use, duplication or disclosure. Since the responsibility also represents an administrative turden, every effort shall be male to satisfy NASA's needs through the use of form, fit, and function data in lieu of a contractor's protectible data. It is er.cumbent cn contracting officers to verify NASA's real need before making a request pursuant to paragraphs (f) and/or (g), and to limit the request to data specifically identified. (e) Procedure for Acquiring Rights to Data (Technical) in Successful Proposals. (1) To implement NASA's policy of acquiring unlimited rights in the technical data (as distinguished from commercial and financial data) contained in successful proposals, the clause of 9.203-7 shall be included in all contracts, the award of which is based upon a solicited or unsolicited propcsal. (2) Prospective contractors are informed of this policy in the Request for Proposal (see 3.501(b) (xlv), and during negotiation of a contract on unsolicited proposal, and are advised that if a contract is awarded 30-156 0-79-28 CFR TITLE 41 CHAPTER 18 |