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PATENTS, DATA AND COPYRIGHTS

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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 specified in the contract.

9.202-3 procedures.

(a) Procedure for determining NASA's Requirements for cata. As part of determining the contract requirements, the cognizant technical office shall determine what ċata will be required during contract performance, and 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, četailed 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 gembers 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:

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(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 9.20 2–2 (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

which of the required data qualifies protectible data.

If required data is identified in the proposal as protectible, the cognizant technical officer shall de termine 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 as 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 r.egotiation,

(d) Procedure for Acquiring Protectible Data Under Faragraphs (f) and/or lal of the "Rights in DataGeneral" Clause 19. 203-3). NASA has adopted the

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NASA PROCUREMENT REGULATION

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"withholding" approach the primary пеа ns for protecting a contractor's protectible data. (See 9.2022(b) and (c) above). The fact that cfticnal paragraph (f) and/or (9) may te added to the "Rights in DataGeneral" clause does not change this fact. If а contractor wishes to continue protection of its protectible data, it must still comply with the withholding provisions of paragraph (e) of that clause.

contractors arenot authorized to affix a "Limited I kights" notice or a "Restricted kights" r.ctice on any

cata unless and until the contracting officer has made a written request pursuant to paragraph (f) and/or (9) 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 "lirited"

or "restricted rights." Marked data subaitted 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." Accord ingly, it is important that this procedure be followed carefully.

The acquisition a contractor's prctectible data with limited or restricted rights carries with it an cbligation 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 al so represents an administrative turden, every effort shall be male to satisfy NASA'S reeds 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 tc paragraphs (f) and/or (9), 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 comercial and financial da ta) contained in successful proposals, the clause of 9.20 3-7 shall be included in all contracts, the award of which is based upon a solicited cr unsolicited propcsal.

(2) Prospective contractors are informed of this folicy in the Request for Proposal (see 3.501(h) (xlv), and during negotiation of a contract cn unsolicited proposal, and are advised that it a contract is awarded

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they request that certa in proposal technical data te excluded from the rights granted to the Government ty this clause. Exclusion of technical data will be nade when the prospective contractor advises the contracting officer that portions of the technical data (to be identified by the prospective contractor) are cover ed by the notice of 1. 30 4-2 (d) (2), and/or establishes to the contracting officer's sa ti sfaction that other identified portions do not relate directly to or will not be utilized in the work to be performed under the contract, and requests that suchportions be excluded from the Government's rights. Such identified portions will then be excluded by inserting the appropriate proposal page numbers in the "Rights to Froposal Data (Technical)" clause (see 9. 203-7) included in the contract. Such exclusion of technical data is not dispositive of its protectible status under law. The responsibility, however, of raising the question of exclusion of such technical data rests with the prospective contractor. Commercial and financial da ta contained in the proposal shall not be made a part of this acquisition frocedure and shall remain under the policy of 1.304-2 (d) (1).

(3) In the event NASA has a need to use excluded technical data in connection with the administration cf the contract such access and rights ray be obtained under the provisions set forth in 9.20 3-7 (b).

9.203 clauses. 9.203-1 Overview.

(a) This paragraph contains instructions for selecting the appropriate data clauses for use in NASA contracts. All NASA contracts contain provisions specifying the data (as defined in 9.201 (a)) to be furnished thereunder, to the extent that NASA's requirements for data can be determined at the time of contracting. However, when contracting for research and development and related services, usually it is not feasible to determine all the requirements for data at the time of contracting. Thus an "optional Data Fequirements" clause is provided to give NASA an option to require delivery of additional data first produced

specifically used during contract performance. (See 9.203-2 for the use of the "optional Data Requirements" clause.)

All contracts, except those identified in 9. 2039, requiring data to be furnished to NASA require a clause to delineate the rights of both the Government and the contractor in such data. The basic and most

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(b)

NASA PROCUREMENT REGULATION

PATENTS, DATA AND COPYRIGHTS

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frequently used data rights clause is the "Rights in [ata-General" clause set forth in 9.203-3. It is suitable for use ir most experimental, developmental, research, or study contracts, as well as contracts for supplies and services which require data to be furnished. Additional paragraphs may also be added to this basic clause to enable access to a contractor's çrotectible data (as defined in 9.201 (d)) under limited rights or restricted rights conditions when there is an established need for such access. See 9. 202-3 (c) for procedures for use of the se additional paragraphs and 9. 202-3 (d) for procedures for acquiring such protectible data.

(c) Scme contracts, however, will require the use of different data rights clauses because of differences in the subject matter the contract or of different rights needed. contracts, or portions thereof, which have as primary purpose or

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signifcant requirement the development of computer software require the use of the "Rights in Data-Special Situations" clause of 9.20 3-4. Contracts, or portions there of, for the production of notion pictures, preparation of scripts, musical compositions, sound tracks, video recordings, translations, adaptations, and the like intended for general release to the public require certain release restrictions and indemnity provisions provided by the "Rights in Data-Motion Fictures" clause of 9.293-5. To assure access to data pertaining to potentially hazardous items, the "Rights in Data-potentially Hazardous Items" clause of 9. 203-6 is provided for use in conjunction with the basic clause of 9. 203-3, in contracts having items designated therein as potentially hazardous.

(d) To assure an understanding of the rights of the Government and the contractor to the technical data contained in successful proposals, the clause of 9.20 37 is provided.

(e) The clause of 9.20 3-8 is provided for contracts where all or the preponderance of the work is to be performed outside of the United States.

(f) Special instructions with accompanying rights in data clauses are provided for contracts (11for purchase of existing books and similar items (9.203-9), (2) for purchase of existing motion pictures or television recordings (9.203-10), and (3) for purchase cf existing computer software (9.203-11).

9.20 3-2 Optional Data Requirements.

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