[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR27.404]

[Page 514-520]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 27--PATENTS, DATA, AND COPYRIGHTS--Table of Contents
 
               Subpart 27.4--Rights in Data and Copyrights
 
Sec. 27.404  Basic rights in data clause.

    (a) Unlimited rights data. Under the clause at 52.227-14, Rights in 
Data--General, the Government acquires unlimited rights in the following 
data (except as provided in paragraph (f) of this section for 
copyrighted data): (1) Data first produced in the performance of a 
contract (except to the extent such data constitute minor modifications 
to data that are limited rights data or restricted computer software); 
(2) form, fit, and function data delivered under contract; (3) 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; and (4) all other data delivered under the contract other than 
limited rights data or restricted computer software (see paragraph (b) 
of this section). If any of the foregoing data are published copyrighted 
data with the notice of 17 U.S.C. 401 or 402, the Government acquires 
them under a copyright license, as set forth in paragraph (f) of this 
section, rather than with unlimited rights.
    (b) Limited rights data and restricted computer software. The clause 
at 52.227-14, Rights in Data--General, enables the contractor to protect 
qualifying limited rights data and restricted computer software by 
withholding such data from delivery to the Government and delivering 
form, fit, and function data in lieu thereof. However, when an agency 
has a need to obtain delivery of limited rights data or restricted 
computer software, the clause may be used with its Alternates II or III, 
as set forth in paragraphs (d) and (e) of this section. These 
alternatives enable a contracting officer to selectively request the 
delivery of such data with limited rights or restricted rights, either 
by specifying such delivery in the contract or by specific request.
    (c) Alternate definition of limited rights data. In the clause at 
52.227-14, Rights in Data--General, in order for data to qualify as 
limited rights data, in addition to being data that either embody a 
trade secret or are data that are commercial or financial and 
confidential or privileged, such data must also pertain to items, 
components, or processes developed at private expense, including minor 
modifications thereof. However, for contracts that do not require the 
development, use or delivery of items, components or processes that are 
intended to be acquired by or for the Government, an agency may adopt 
for general use or for use in specific circumstances the alternate 
definition of limited rights data set forth in Alternate I. The 
alternate definition does not require that such data pertain to items, 
components, or processes developed at private expense; but rather that 
such data were developed at private expense and embody a trade secret or 
are commercial or financial and confidential or privileged.
    (d) Protection of limited rights data specified for delivery. (1) 
Contracting officers are authorized to modify the clause at 52.227-14, 
Rights in Data--General, by use of Alternate II, which Alternate adds 
subparagraph (g)(2) to the clause to enable the Government to require 
delivery of limited rights data rather than allowing the contractor to 
withhold such data. To obtain such 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 as withholdable under 
subparagraph (g)(1) of the clause

[[Page 515]]

at 52.227-14 Rights in Data--General. In addition, if agreed to during 
negotiations, the contract may specifically identify data that are not 
to be delivered under Alternate II or which, 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 
subparagraph (g)(2) (Alternate II). Such limited rights data will not, 
without permission of the contractor, be used by the Government for 
purposes of manufacture, and will not be disclosed outside the 
Government except for certain specific purposes as may be set forth in 
the Notice, and then only if the Government makes the disclosure subject 
to prohibition against further use and disclosure by the recipient. The 
following are examples of specific purposes which may be adopted by an 
agency in its supplement and added to the Limited Rights Notice of 
subparagraph (g)(2) of the clause (Alternate II):
    (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, for information and use in connection with the work performed 
under each contract.
    (iv) Emergency repair or overhaul work.
    (v) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government.
    (2) As an aid in determining whether the clause at 52.227-14 should 
be used with its Alternate II, the provision at 52.227-15, 
Representation of Limited Rights Data and Restricted Computer Software, 
may be included in any solicitation containing the clause at 52.227-14, 
Rights in Data--General. This provision requests that an offeror state 
in response to a solicitation, to the extent feasible, whether limited 
rights data are likely to be used in meeting the data delivery 
requirements set forth in the solicitation. In addition, the need for 
Alternate II should be considered during negotiations or discussion with 
an offeror, particularly where negotiations are based on an unsolicited 
proposal. However, use of the clause at 52.227-14, Rights in Data--
General, without Alternate II does not preclude this Alternate from 
being used subsequently by modification during contract performance, 
should the need arise for delivery of limited rights data that have been 
withheld or identified as withholdable.
    (3) Whenever data that would qualify as limited rights data, if it 
were to be delivered in human readable form, is formatted as a computer 
data base for the purpose of delivery under a contract containing the 
clause at 52.227-14, Rights in Data--General, such data is to be treated 
as limited rights data, rather than restricted computer software, for 
the purposes of paragraph (g) of that clause.
    (e) Protection of restricted computer software specified for 
delivery. (1) Contracting officers are authorized to modify the clause 
at 52.227-14, Rights in Data--General, by use of Alternate III, which 
Alternate adds subparagraph (g)(3) to the clause to enable the 
Government to require delivery of restricted computer software rather 
than allowing the contractor to withhold such restricted computer 
software. To obtain such delivery, the contract may identify and specify 
the computer software to be delivered, or the contracting officer may 
require by written request during contract performance, the delivery of 
computer software that has been withheld or identified as withholdable 
under subparagraph (g)(1) of the clause. In addition, if agreed to 
during negotiations, the contract may specifically identify computer 
software that are not to be delivered under Alternate III or which, if 
delivered, will be with restricted rights. In considering whether to use 
the clause at 52.227-14 with its Alternate III, it should be 
particularly noted that unlike other data, computer software is also an 
end item in itself, such that if withheld and form, fit, and function 
data provided in lieu thereof, an operational program will not be 
acquired. Thus, if delivery of restricted computer software is 
anticipated to be needed to meet contract performance requirements, the 
contracting officer should assure that the clause is used

[[Page 516]]

with its Alternate III. Unless otherwise agreed to (see paragraph (e)(2) 
of this section) the restricted rights obtained by the Government are 
set forth in the Restricted Rights Notice contained in subparagraph 
(g)(3) (Alternate III). Such restricted computer software will not be 
used or reproduced by the Government, or disclosed outside the 
Government, except that the computer software may be--
    (i) Used or copied for use in or with the computer or computers for 
which it was acquired, including use at any Government installation to 
which such computer or computers may be transferred;
    (ii) Used or copied for use in or with a backup computer if any 
computer for which it was acquired becomes inoperative;
    (iii) Reproduced for safekeeping (archives) or backup purposes;
    (iv) Modified, adapted, or combined with other computer software, 
provided that the modified, combined, or adapted portions of any 
derivative software incorporating restricted computer software are made 
subject to the same restricted rights;
    (v) Disclosed to and reproduced for use by support service 
contractors, subject to the same restriction under which the Government 
acquired the software;
    (vi) Used or copied for use in or transferred to a replacement 
computer; and
    (vii) Used in accordance with subdivisions (e)(1) (i) through (v) of 
this section, without disclosure prohibitions, if the computer software 
is published copyrighted computer software.
    (2) The restricted rights set forth in subparagraph (e)(1) of this 
section are the minimum rights the Government normally obtains with 
restricted computer software and will automatically apply when such 
software is acquired under the Restricted Rights Notice of subparagraph 
(g)(3) (Alternate III) of the clause. However, either greater or lesser 
rights, consistent with the purposes and needs for which the software is 
to be acquired, may be specified by the contracting officer in a 
particular contract or prescribed in agency regulations. For example, 
consideration should be given to 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 
be different for the documentation accompanying the computer software 
than for the programs and data bases. Any additions to, or limitations 
on, the restricted rights set forth in the Restricted Rights Notice of 
subparagraph (g)(3) of the clause are to be expressly stated in the 
contract or in a collateral agreement incorporated in and made part of 
the contract, and the notice modified accordingly.
    (3) As an aid in determining whether the clause should be used with 
its Alternate III, the provision at 52.227-15, Representation of Limited 
Rights Data and Restricted Computer Software, may be included in any 
solicitation containing the clause at 52.227-14, Rights in Data--
General. This provision requests that an offeror state, in response to a 
solicitation, to the extent feasible, whether restricted computer 
software is likely to be used in meeting the data delivery requirements 
set forth in the solicitation. In addition, the need for Alternate III 
should be considered during negotiations or discussions with an offeror, 
particularly where negotiations are based on an unsolicited proposal. 
However, use of the clause at 52.227-14, Rights in Data--General, 
without Alternate III does not preclude this Alternate from being used 
subsequently by modification during contract performance, should the 
need arise for the delivery of restricted computer software that has 
been withheld or identified as withholdable.
    (f) Copyrighted data.--(1) Data first produced in the performance of 
a contract. (i) In order to enhance the transfer or dissemination of 
information produced at Government expense, contractors are normally 
authorized, without prior approval of the contracting officer, to 
establish claim to copyright subsisting in technical or scientific 
articles based on or containing data first produced in the performance 
of work under a contract containing the clause at 52.227-14, Rights in 
Data--General and published in academic, technical or professional 
journals, symposia proceedings and similar works. Otherwise,

[[Page 517]]

the permission of the contracting officer is required in accordance with 
subdivision (f)(1)(ii) of this section or any applicable agency 
regulations, to establish claim to copyright subsisting in data first 
produced in the performance of a contract unless the clause is used with 
its Alternate IV in accordance with subdivision (f)(1)(iii) of this 
section. Agencies may, however, restrict copyright under certain 
circumstances in accordance with subparagraph (g)(3) of this section.
    (ii) Usually, permission for a contractor to establish claim to 
copyright subsisting in data first produced under the contract will be 
granted when copyright protection will enhance the appropriate transfer 
or dissemination of such data and the commercialization of products or 
processes to which it pertains. The request for permission must be made 
in writing, and may be made either prior to contract award or 
subsequently during contract performance. It 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 copyright is desired. The 
request normally will be granted unless--(A) the data consist of a 
report that represents the official views of the agency or that the 
agency is required by statute to prepare; (B) the data are intended 
primarily for internal use by the Government; (C) the data are of the 
type that the agency itself distributes to the public under an agency 
program; (D) the Government determines that limitation on distribution 
of the data is in the national interest; (E) the Government determines 
that the data should be disseminated without restriction.
    (iii) An Alternate IV is provided for use with the clause at 52.227-
14, Rights in Data--General, which Alternate provides a substitute 
subparagraph (c)(1) in the clause granting blanket permission for 
contractors to establish claim to copyright subsisting in all data first 
produced in the performance of the contract without further request 
being made by the contractor. Alternate IV shall be used in all 
contracts for basic or applied research (other than those for management 
or operation of Government facilities and in contracts and subcontracts 
in support of programs being conducted at such facilities or where 
international agreements require otherwise) to be performed solely by 
colleges and universities. Alternate IV will not be used in contracts 
with colleges and universities if a purpose of the contract is for 
development of computer software for distribution to the public 
(including use in solicitations) by or on behalf of the Government. In 
addition, Alternate IV may be used in other contracts if an agency 
determines to grant blanket permission for contractors to establish 
claim to copyright subsisting in all data first produced in the 
performance of contract without further request being made by the 
contractor. In any contract where Alternate IV is used, the contract may 
exclude any data, items or categories of data from the blanket 
permission granted, either by express provisions in the contract or by 
the addition of a subparagraph (d)(3) to the clause, consistent with 
subparagraph (g)(3) of this section.
    (iv) Whenever a contractor establishes claim to copyright subsisting 
in data (other than computer software) first produced in the performance 
of a contract, the Government is granted 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 such data, as set forth in 
subparagraph (c)(1) of the clause at 52.227-14, Rights in Data--General. 
For computer software the scope of the Government's license does not 
include the right to distribute to the public. Agencies may also, either 
on a case-by-case basis, or on a class basis if provided in implementing 
regulations, obtain a license of different scope than set forth in 
subparagraph (c)(1) of the clause if the agency determines that such 
different license will substantially enhance the transfer or 
dissemination of any data first produced under the contract, and will 
not interfere with the Government's use of the data as contemplated by 
the contract or if required for international agreements. If an agency 
obtains such a different license, the scope of that license shall be

[[Page 518]]

clearly stated in a conspicuous place on the medium on which the data is 
recorded. That is, if a report, the scope of the different license shall 
be put on the cover, or first page, of the report. If computer software, 
the scope of the different license shall be placed on the most 
conspicuous place available.
    (v) Whenever a contractor establishes claim to copyright in data 
first produced in the performance of a contract, irrespective of which 
Alternate is used with the clause or the scope of the Government's 
license, the contractor is required to affix the applicable copyright 
notices of 17 U.S.C. 401 or 402, and acknowledgment of Government 
sponsorship (including the contract number) to the data whenever such 
data are delivered to the Government, published, or deposited for 
registration as a published work in the U.S. Copyright Office. Failure 
to do so could result in such data being treated as unlimited rights 
data (see paragraph (i) of this section).
    (2) Data not first produced in the performance of a contract. (i) 
Contractors are not to incorporate in data delivered under a contract 
any data that is not first produced under the contract and that is 
marked with the copyright notice of 17 U.S.C. 401 or 402, without either 
(A) acquiring for or granting to the Government certain copyright 
license rights for the data, or (B) obtaining permission from the 
contracting officer to do otherwise. The copyright license the 
Government acquires for such data will normally be of the same scope as 
discussed in subdivision (f)(1)(iv) of this section, and is set forth in 
subparagraph (c)(2) of the clause at 52.227-14, Rights in Data--General. 
However, agencies may, on a case-by-case basis, or on a class basis if 
provided in implementing agency regulations, obtain a license of 
different scope if the agency determines that such different license 
will not be inconsistent with the purpose of acquiring the data. If a 
license of a different scope is acquired, it must be so stated in the 
contract and clearly set forth in a conspicuous place on the data when 
delivered to the Government. In addition, if computer software not first 
produced under a contract is delivered with the copyright notice of 17 
U.S.C. 401, the Government's license will be as set forth in 
subparagraph (g)(3) (Alternate III) if included in the clause at 52.227-
14, Rights in Data--General, or as otherwise may be provided in a 
collateral agreement incorporated in or made part of the contract.
    (ii) Contractors delivering data with both an authorized limited 
rights or restricted rights notice and the copyright notice of 17 U.S.C. 
401 or 402 should modify the copyright notice to include the following 
(or similar) statement: Unpublished--all rights reserved under the 
copyright laws of the United States. If this statement is omitted, the 
contractor may be afforded an opportunity to correct it in accordance 
with paragraph (h) of this section. Otherwise, data delivered with a 
copyright notice of 17 U.S.C. 401 or 402 may be presumed to be published 
copyrighted data subject to the applicable license rights set forth in 
subdivision (f)(2)(i) of this section, without disclosure limitations or 
restrictions.
    (iii) If contractor action causes limited rights or restricted 
rights data to be published with the copyright notice of 17 U.S.C. 401 
or 402 after its delivery to the Government, the Government is relieved 
of disclosure and use limitations and restrictions regarding such data, 
and the contractor should advise the Government, request that a 
copyright notice be placed on the copies of the data delivered to the 
Government and acknowledge that the applicable copyright license set 
forth in subdivision (f)(2)(i) of this section applies.
    (g) Release, publication, and use of data. (1) In paragraph (d) of 
the clause at 52.227-14, Rights in Data--General, subparagraph (d)(1) 
recognizes the fact that normally the contractor has the right to use, 
release to others, reproduce, distribute, or publish data first produced 
in the performance of a contract, except to the extent such data may be 
subject to Federal export control or to national security laws or 
regulations. In addition, to the extent the contractor receives or is 
given access to data that is necessary for the performance of the 
contract from or by the Government or others acting on behalf of the 
Government, and the data contains restrictive markings, subparagraph 
(d)(2) provides an agreement

[[Page 519]]

with the contractor to treat the data in accordance with the markings, 
unless otherwise specifically authorized by the contracting officer.
    (2) In contracts for basic or applied research with universities or 
colleges, no restrictions may be placed upon the conduct of or reporting 
on the results of unclassified basic or applied research, except as 
provided in applicable U.S. Statutes. For the purposes of this 
subparagraph, agency restrictions on the release or disclosure of 
computer software that has been, readily can be, or is intended to be, 
developed to the point of practical application (including for agency 
distribution under established programs) are not considered restrictions 
on the reporting of the results of basic or applied research. Agencies 
may also restrict claim to copyright in any computer software for 
purposes of established agency distribution programs, or where required 
to accomplish the purpose for which the software is produced.
    (3) 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 right to use, release to others, reproduce, distribute, 
or publish any data first produced in the performance of the contract, 
including a requirement to assign copyright to the Government or another 
party, either by adding a subparagraph (d)(3) to the Rights in Data--
General clause at 52.227-14, or by express limitations or restrictions 
in the contract. In the latter case, the limitations or restrictions 
should be referenced in the Rights in Data--General clause. However, 
such regulatory restrictions or limitations are not to be imposed unless 
they are determined by the agency to be necessary in the furtherance of 
agency mission objectives, needed to support specific agency programs, 
or necessary to meet statutory requirements. Notwithstanding the 
provisions of this subparagraph, agencies may obtain, if provided in 
their FAR supplement, for information purposes only, advance copies of 
articles intended for publication in academic, scientific or technical 
journals or symposia proceedings or similar works.
    (h) Unauthorized marking of data. Except for validation of 
restrictive markings on technical data under contracts for major 
systems, or for support of major systems, by agencies subject to the 
provisions of Title III of the Federal Property and Administrative 
Services Act of 1949, the Government has, in accordance with paragraph 
(e) of the clause at 52.227-14, Rights in Data--General, the right to 
either return to the contractor data containing markings not authorized 
by that clause, or to cancel or ignore such markings. However, markings 
will not be canceled or ignored without making written inquiry of the 
contractor and affording the contractor at least 30 days to provide a 
written justification to substantiate the propriety of the markings. 
Failure of the contractor to respond, or failure to provide a written 
justification to substantiate the propriety of the markings within the 
time afforded, may result in the Government's action to cancel or ignore 
the markings. If the contractor provides a written justification to 
substantiate the propriety of the markings, it will be considered by the 
contracting officer and the contractor notified of any determination 
based thereon. If the contracting officer determines that the markings 
are authorized, the contractor will be so notified in writing. Further, 
if the contracting officer determines, with concurrence of the head of 
the contracting activity, that the markings are not authorized, the 
contractor will be furnished a written determination which shall become 
the final agency decision regarding the appropriateness of the markings 
and the markings will be cancelled or ignored and the data will no 
longer be made subject to disclosure prohibitions, unless the contractor 
files suit within 90 days in a court of competent jurisdiction. In any 
event, the markings will not be cancelled or ignored unless the 
contractor fails to respond within the period provided, or, if the 
contractor does respond, until final resolution of the matter, either by 
the contracting officer's determination becoming the

[[Page 520]]

final agency decision or by final disposition of the matter by court 
decision if suit is filed. The foregoing procedures may be modified in 
accordance with agency regulations implementing the Freedom of 
Information Act (5 U.S.C. 552) if necessary to respond to a request 
thereunder. In addition, the contractor is not precluded from bringing a 
claim under the Contract Disputes Act, including pursuant to the 
Disputes clause of this contract if applicable, that may arise as the 
result of the Government's action to remove or ignore any markings on 
data, unless such action occurs as the result of a final disposition of 
the matter by a court of competent jurisdiction.
    (i) Omitted or incorrect notices. (1) Data delivered under a 
contract containing the clause at 52.227-14, Rights in Data--General, 
without a limited rights notice or restricted rights notice, and without 
a copyright notice, will be presumed to have been delivered with 
unlimited rights, and the Government assumes no liability for the 
disclosure, use, or reproduction of such 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 omitted limited rights or 
restricted rights notices, as applicable, placed on qualifying data at 
the contractor's expense, and the contracting officer may agree to so 
permit if the contractor (i) identifies the data for which a notice is 
to be added or corrected, (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.
    (j) Inspection of data at the contractor's facility. Contracting 
officers may obtain the right to inspect data at the contractor's 
facility by use of Alternate V, which adds paragraph (j) to provide that 
right in the clause at 52.227-14, Rights in Data--General. Agencies may 
also adopt Alternate V for general use. The data subject to inspection 
may be data withheld or withholdable under subparagraph (g)(1) of the 
clause. Such inspection may be made by the contracting officer or 
designee (including nongovernmental personnel under the same conditions 
as the contracting officer) for the purpose of verifying a contractor's 
assertion regarding the limited rights or restricted rights status of 
the data, or for evaluating work performance under the contract. This 
right may be exercised up to 3 years after acceptance of all items to be 
delivered under the contract. The contract may specify data items that 
are not subject to inspection under paragraph (j) (Alternate V). If the 
contractor demonstrates to the contracting officer that there would be a 
possible conflict of interest if inspection were made by a particular 
representative, the contracting officer shall designate an alternate 
representative.

[52 FR 18140, May 13, 1987, as amended at 64 FR 10532, Mar. 4, 1999]