27.
RIGHTS IN DATA - SBIR/STTR PROGRAM.
a. Definitions.
“Computer software” as used in this term, means computer programs,
computer databases, and documentation thereof.
"Data" as used in this term, means recorded
information, regardless of form or the media on which it may be recorded.
The "Data" includes technical data and computer software.
The "Data" does not include information incidental to grant
administration, such as financial, administrative, cost or pricing or management
information.
“Form, fit and function data" as used in this term, means data
relating to items, components, or processes that are sufficient to enable
physical and functional interchangeability as well as data identifying source,
size, configuration, matching and attachment characteristics, functional
characteristics, and performance requirements except that for computer software
it means data identifying source, functional characteristics, and performance
requirements, but specifically excludes the source code, algorithm, process,
formulae, and flow charts of the software.
“Limited rights data” as used in this term, means data (other than
computer software) developed at private expense that embody trade secrets or are
commercial or financial and confidential or privileged.
“Restricted computer software” as used in this term, means computer
software developed at private expense and that is a trade secret; is commercial
or financial and confidential or privileged; or is published copyrighted
computer software; including modifications of such computer software.
“SBIR/STTR data” as used in this term, means data first produced by a
grantee that is a small business firm in performance of a small business
innovation research grant issued under the authority of 15 U.S.C. 631 (Pub. L.
102-564, Small Business Research and Development Enhancement Act of 1992), which
data are not generally known, and which data without obligation to its
confidentiality have not been made available to others by the grantee or are not
already available to the Government.
“SBIR/STTR rights” as used in this term, means the rights in
SBIR/STTR data set forth in the SBIR/STTR Rights Notice of paragraph d. of this
term.
“Technical data” as used in this term, means that data which are of a
scientific or technical nature.
“Unlimited rights” as used in this term, means the right of the
Government to use, disclose, reproduce, prepare derivative works, distribute
copies to the public, and perform publicly and display publicly, in any manner
and for any purpose whatsoever, and to have or permit others to do so.
b. Allocation of Rights.
(1) Except as provided in paragraph c. of this term regarding copyright,
the Government shall have unlimited rights in -
(a) Data specifically identified in this grant as data to be delivered
without restriction;
(b) Form, fit, and function data delivered under this grant;
(c) Data delivered under this grant (except for 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 this grant; and
(d) All other data delivered under this grant unless provided otherwise
for SBIR/STTR data in accordance with paragraph d. of this term or for limited
rights data or restricted computer software in accordance with paragraph g. of
this term.
(2) The grantee shall have the right to -
(a) Protect SBIR/STTR rights in SBIR/STTR data delivered under this grant
in the manner and to the extent provided in paragraph d. of this term.
(b) Withhold from delivery those data which are limited rights data or
restricted computer software to the extent provided in paragraph g. of this
term.
(c)
Substantiate use of, add, or correct SBIRSTTR rights of copyright notices and to
take other appropriate actions, in accordance with paragraph e. of this term;
and
(d) Establish claim to copyright subsisting in data first produced in the
performance of this grant to the extent provided in subparagraph c. (1) of this
term.
c. Copyrights.
(1)
Data first produced in the
performance of this grant. Except
as otherwise specifically provided in this grant, the grantee may establish
claim to copyright subsisting in any data first produced in the performance of
this grant. If claim to copyright is
made, the grantee shall affix the applicable copyright notice of 17 U.S.C. 401
and 402 and acknowledgment of Government sponsorship (including grant number) to
the data when such data are delivered to the Government, as well as when the
data are published or deposited for registration as published work in the U.S.
Copyright Office. For data other
than computer software the grantee grants to the Government, and others acting
on its behalf, a paid-up nonexclusive, irrevocable worldwide license to
reproduce, prepare derivative works, distribute copies to the public, and
perform publicly and display publicly, by or on behalf of the Government for all
such data. For computer software,
the grantee grants to the Government, and others acting on its behalf, a
paid-up nonexclusive, irrevocable worldwide license for all such computer
software to reproduce, prepare derivative works, and perform publicly and
display publicly, by or on behalf of the Government.
(2) Data not first produced in the performance of this grant.
The grantee shall not, without prior written permission of the
Contracting Officer, incorporate in data delivered under this grant; and that
contain the copyright notice of 17 U.S.C. 401 and 402, unless the grantee
identifies such data and grants to the Government, or acquires on its behalf, a
license of the same scope as set forth in subparagraph c. (1) of this term.
(3) Removal of copyright notices. The
Government agrees not to remove any copyright notices placed on data pursuant to
this paragraph c., and to include such notices on all reproductions of the data.
d. Rights to SBIR/STTR
Data.
(1) The grantee is authorized to affix the following
SBIR/STTR Rights Notice to SBIR/STTR data delivered under this grant and
the Government will thereafter treat the data, subject to the provisions of
paragraphs e. and f. of this term, in accordance with such Notice:
SBIR/STTR
RIGHTS NOTICE
These
SBIR/STTR data are furnished with SBIR/STTR rights under Grant No.___________
(and subcontract ______________ if
appropriate). For a period of 4
years after acceptance of all items to be delivered under this grant, the
Government agrees to use these data for Government purposes only, and they shall
not be disclosed outside the Government (including disclosure for procurement
purposes) during such period without permission of the grantee, except that,
subject to the foregoing use and disclosure prohibitions, such data may be
disclosed for use by support contractors. After
the aforesaid 4-year period the Government has a royalty-free
license to use, and to authorize others to use on its behalf, these data for
Government purposes, but is relieved of all disclosure prohibitions and assumes
no liability for unauthorized use of these data by third parties.
This Notice shall be affixed to any reproductions of these data in whole
or in part.
(End of Notice)
(2)
The Government’s sole obligation with respect to any SBIR/STTR data shall be
as set forth in this paragraph d.
e. Omitted or Incorrect
Markings.
(1) Data delivered to the Government without any notice authorized by
paragraph d. of this term, and without a copyright notice, shall be deemed to
have been furnished with unlimited rights, and the Government assumes no
liability for the disclosure, use, or reproduction of such data.
However, to the extent the data have not been disclosed without
restriction outside the Government, the grantee may request within six months
(or a longer time approved by the Contracting Officer for good cause shown)
after delivery of such data, permission to have notices placed on qualifying
data at the grantee’s expense, and the Contracting Officer may agree to do so
if the grantee –
(a) Identifies the data to which the omitted notice is to be applied;
(b) Demonstrates that the omission of the notice was inadvertent;
(c) establishes that the use of the proposed notice is authorized; and
(d)
Acknowledges that the Government has no liability with respect to the 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 (a) permit correction, at the
grantee's expense, of incorrect notices if the grantee identifies the data on
which correction of the notice is to be made and demonstrates that the correct
notice is authorized, or (b) correct any incorrect notices.
f. Protection of Limited
Rights Data. When data other than that listed in subdivisions b.(1)(a), (b),
and (c) of this term are specified to be delivered under this grant and such
data qualify as either limited rights data or restricted computer software, the
grantee, if the grantee desires to continue protection of such data, shall
withhold such data and not furnish them to the Government under this grant.
As a condition to this withholding the grantee shall identify the data
being withheld and furnish form, fit, and function data in lieu thereof.