DATA AND COPYRIGHTS

that

they may request that certain proposal technical data te excluded from the rights granted to the Government ty this clause. Exclusion of technical data will be rade when the prospective contractor advises the contracting officer that portions of the technical data (to be identified by the prospective contractor) are covered by the notice of 1.304-2 (d) (2), and/or establishes to the contracting officer's satisfaction 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 Fortions will then be excluded by inserting the appropriate proposal page numbers in the "Rights to Proposal 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 prospectivé contractor. Commercial and financial data contained in the proposal shall not be made a part of this acquisition procedure 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 may be obtained under the provisions set forth in 9.203-7 (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 de fined 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 Requirements" clause is provided to give NASA an option to require delivery of additional data first produced or specifically used during contract performance. (See 9.203-2 for the use of the "Optional Data Requirements" clause.)

(b) 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

NASA PROCUREMENT REGULATION

PATENTS, DATA AND COPYRIGHTS

to

frequently used data rights clause is the "Rights in Data-General" clause set forth in 9.203-3. It is suitable for use in 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 this basic clause to enable access to a contractor's protectible 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 these additional paragraphs and 9.202-3 (d) for procedures for acquiring such

protectible data.

(c) Scre contracts, however, will require the use of different data rights clauses because of differences in the subject matter of the contract or of different rights needed. Contracts, or portions thereof, which have as a primary purpose or as a signifcant requirement the development of computer software require the use of the "Rights in Data-Special Situations" clause of 9.203-4. Contracts, or portions thereof, for the production of motion pictures, Freparation 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 Frovisions provided by the "Rights in Data-Motion Fictures" clause of 9.203-5. 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 9.2037 is provided.

(e) The clause of 9.203-8 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 (1) for 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). 9.203-2 Optional Data Requirements.

CFR TITLE 41 CHAPTER 18

DATA AND COPYRIGHTS

The clause set forth below shall be included in Experimental, developmental, research, or study contracts. The contracting officer is authorized, after consultation with the installation patent counsel, to use the clause in other contracts when considered appropriate. In instances when the contractor is to be released from retention obligations under the clause as to certain identified data, the contracting officer's release notice shall include a statement that such release does not relieve the contractor or any subcontractor from obligations that may exist under any cther contract provision (or subcontract provision) pertaining to to, and retention of, the identified data.

access

OPTIONAL DATA REQUIREMENTS (NOVEMBER 1977)

In addition to the data specified elsewhere in this contract to be furnished, the Contracting Officer may at any time during the contract performance or within one year after final payment require the Contractor to furnish any data first produced or specifically used in the performance of this contract or any subcontract hereunder; provided, however, that the Contractor is not required under this clause to furnish data specifically used in developing computer software covered by the "Rights in Data Special Situations" clause of NASA Procurement Regulation 9.203-4. The treatment of protectible data, as well as the rights to any data furnished under this clause, shall be determined by the applicable "Rights in Data - General" cr "Rights in Data - Special Situations" clause(s) of this contract. When data is furnished under this clause the Contractor shall be compensated for converting the data into the prescribed form, for reproduction, and for delivery. In order to minimize the costs of storage, the Contracting Officer may release the Contractor from the retention cbligations under this clause as to particular data specified in writing.

9.203-3 Rights in Data-General.

(a) The clause set forth below shall be used in all contracts calling for the delivery of data, unless another clause is specifically required by subsequent provisions:

RIGHTS IN DATA

GENERAL (NOVEMBER 1977)

(a) Definitions.

NASA PROCUREMENT REGULATION

PATENTS, DATA AND COPYRIGHTS

(1) "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 may be recorded. The term

include

information

incidental

to

does not contract

administration, such as financial and business reports. (2) "Computer Software" means data in the form of computer programs, computer data bases, and documentation thereof.

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

(4) "protectible Data" means:

(i) data which constitutes Contractor's trade secrets but only to the extent that such data relates to items, components, or processes including minor modifications thereof, which were developed at private expense; and

(ii) computer software developed at private expense which has been protected by the Contractor from unrestricted use, duplication, or disclosure by others.

However, as to (a) (4) (i) above, the term "Protectible Cata" does not include training manuals, or instructional material for installation, operation, routine maintenance or repair.

(5) "Form, Fit, and Function Data" means data pertaining to items, components, ΟΙ 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 data.

(b) Rights.

(1) The Government shall have the right to use, duplicate, and disclose, in whole or in part, in any manner and for any purpose whatsoever, and have others so do, all subject data unless otherwise limited below.

(2) The Government shall have the right at any time to correct, cancel, or ignore any restrictive notice or legend on subject data not authorized by the terms of this contract. Restrictive notices are authorized only in the event paragraphs (f) and/or (g) are included in this contract and the contract specifically provides that data subject to these paragraphs is to be furnished, or the Contracting officer has made a written request for protectible data pursuant to such paragraphs.

(c) Copyright.

CFR TITLE 41 CHAPTER 18

DATA AND COPYRIGHTS

(1) Subject Data First Produced Under This Contract. Except for scientific and technical articles based on the work performed under this contract and published in an academic or technical journal, the Contractor shall not, without prior written permission of the Contracting Officer, establish a claim to statutory copyright in any subject data first produced under this contract. The Government, and others acting on its behalf, shall have 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. Where the contractor publishes or releases computer software first produced under this contract without claim of copyright, it shall simultaneously furnish the Contracting Officer with a copy of such software and a statement as to the circumstances of the publication or release.

(2) Subject Data Not First Produced Under This Contract. Except for computer software to be furnished Fursuant to paragraph (g) herein, the Contractor shall not incorporate copyrighted data in subject data not first produced under this contract unless:

(i) the Contractor grants to the Government, a royalty-free, nonexclusive, irrevocable, worldwide license for Governmental purposes, to publish, distribute, translate, copy, exhibit, and perform such copyrighted subject data; or

(ii) the Contractor obtains the written permission of the Contracting officer.

(d) Relationship to Patents. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope cf any license or other right otherwise granted to the Government under any patent.

(e) Withholding of Protectible Data.

(1) Except as provided in (2) below, where data which is specified in the contract to be furnished meets the definition of protectible data in (a) (4) above, the Contractor, if it desires to continue Frotection of such data, shall withhold such data and not furnish it to the Government under this contract. However, as a condition to withholding, the Contractor must identify the protectible data being withheld, furnish in

lieu thereof form, fit, and function data.

(2) In the event a protectible data acquisition provision is included in this clause (paragraphs (f) and/or (g) below), the Contracting Officer may require

NASA PROCUREMENT REGULATION