# Presentation: 759016

## Copyright - DOD Contracts 

**Copyright - DOD Contracts **

**Flayo O. Kirk**
** ****Associate General Counsel, DISA**
**March 2003**
**(703) 681-0326**
**kirkf@ncr.disa.mil**

**Notes:**

Good morning.  I’m Flayo Kirk and I’m here on behalf of Mr. Carl Smith, the General Counsel for DISA.  DISA stands for Defense Information Systems Agency.  We are a DOD agency that provides telecommunications support for DOD and Federal agencies.  

## Disclaimer

**The opinions about to be expressed are designed to foster scholarly debate and are not necessarily those of DISA or any Federal government agency.  This briefing is not intended to provide specific legal advice.    **

- Copyright - DOD Contracts

- March 2003

**Notes:**
The goal of this briefing is to raise your awareness of the various copyright issues encountered in DOD contracting, and not to provide specific legal advice.     

## Agenda

**Copyright - DOD Contracts **
**Guidance**
**Operations**
**Open Source Software**

- Copyright - DOD Contracts

- March 2003

**Notes:**
For the next 10 minutes or so I’ll provide an overview of copyright issues that frequently occur in DOD contracting.  First, we’ll discuss some applicable guidance, and then cover specific operational questions.  We’ll conclude with an introduction to copyright issues raised by open source software (OSS).  During this briefing, feel free to ask any question you may have.  I’ll try to answer your question.  If I don’t know the answer, see me afterwards to ensure your question is answered.

## Guidance

**   **
**Contracts - DFARS  (DOD Supplement to FAR)**
**Grants - DOD Directive/Regulation 3210.6    **
**   **
**Agency Expertise**

- Copyright - DOD Contracts

- March 2003

**Notes:**

Within DOD, we look to the DFARS, applicable directives and regulations, and specific agencies, to resolve copyright issues.  For contracts, DOD does not use the FAR guidance on copyright.  Rather, DOD follows the procedures outlined by DFARS Subparts 227.71 and 227.72.  As we’ll see later, this divergence may result in different answers for copyright questions, depending upon whether civilian agency or DOD contracts are involved.  The DFARS also allows administrative claims of copyright infringement IAW DFARS Subpart 227.70.     

## Guidance

**Agency Expertise**
**   ****-- Copyright Office**
**         ****(http://lcweb.loc.gov/copyright/)**
**   ****-- CENDI Copyright FAQ**
**         ****(http://www.dtic.mil/cendi/pubarc.html)**
**   ****-- DTIC Copyright Guidelines**
**         ****(http://www.dtic.mil/)**

- Copyright - DOD Contracts

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**Notes:**
There are many places that DOD agencies can turn to for guidance on copyright questions.  Our first stop is the U.S. Copyright Office, which is part of the Library of Congress.  The Copyright Office is a gold mine, containing a wealth of copyright information, including numerous information circulars, factsheets, and forms.  

##                      Guidance

**                     ****Guidance**

- Copyright - DOD Contracts

- March 2003

**Notes:**
CENDI is an interagency cooperative organization whose members include the Departments of Agriculture, Commerce, Energy, Education, Defense, the EPA, Health & Human Services, Interior, and NASA.  Its copyright FAQ, which examines copyright from a Federal agency perspective, is worth looking at.

##                               Guidance

- Copyright - DOD Contracts

- March 2003

**Notes:**
Within DOD, we also often consult the copyright guidelines found at DTIC, the Defense Technical Information Center.  DTIC is DOD’s central facility for the collection and dissemination of scientific and technical information.  Because DTIC collects and disseminates research reports, it often has to resolve copyright issues.  Let’s move on to some operational issues now.

## Contracts - Contractor’s Copyright Notice

Can we reproduce and distribute the document? 
 Can we direct the contractor to remove its notice?
 If there’s no notice, does that mean the document is not protected by the contractor’s copyright? 

**Can we reproduce and distribute the document? **
** ****Can we direct the contractor to remove its notice?**
** ****If there’s no notice, does that mean the document is not protected by the contractor’s copyright? **

**              ****Operations**

- Copyright - DOD Contracts

- March 2003

**Notes:**
You have all seen copyright notices.  A copyright notice can be a c in a circle, year of first publication, and name of the copyright owner.  When a contractor’s copyright notice appears on a work produced under a DOD contract, the first question usually asked is does this copyright notice mean we cannot reproduce or distribute this document.  Can we still make our 500 copies of this work, be it a maintenance manual or research study, and send it out to the field?

Also, users often want to remove the contractor’s copyright notice because after all, this is a quote government document unquote.

Finally, since some documents produced by a contractor don’t have copyright notices, we’re often asked if that means the work is not protected by copyright. 

##                                      Operations

**Contracts - Contractor’s Copyright Notice**
**Can we reproduce and distribute the document?**
**Yes (generally)**
**Data Rights clauses**
**DFARS  v.  FAR**
**        ****DFARS – Unlimited Rights**
**        ****FAR – Government Purposes**
**May Accept Lesser Rights **

- Copyright - DOD Contracts

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**Notes:**
Let’s look at the first question.  The contractor’s copyright notice does not usually prevent the government from copying a document first produced under government contract.  Here’s why.  Generally, the data rights clauses of a government contract specifically allow the government to copy such documents.   

Under the DFARS data rights clauses used by DOD, the government normally obtains unlimited rights to use works first produced under a contract, which allows it to freely reproduce and distribute such works.  In contrast, the FAR data rights clauses only allow the government to use a work for government purposes.  

There are exceptions to the above general rules.  Under both the DFARS and the FAR, a contracting officer or CO may agree to accept lesser rights that restrict the government’s ability to use a work.  For example, a CO might agree to accept government purpose rights, limited rights, or even allow a contractor to incorporate material that is already protected by copyright.  

##                                      Operations

**Contracts - Contractor’s Copyright Notice**
**Can we direct the contractor to remove its notice?**
**     ****--  No**
**     ****--  DFARS  v.  FAR **
**            ****DFARS - Copyright Notice Permitted**
**                 ****FAR - Copyright Notice Required**
**                          ****- Unlimited Rights if Omitted **

- Copyright - DOD Contracts

- March 2003

**Notes:**
Government employees often ask if they can delete a contractor’s copyright notice.  Employees see a contractor’s copyright notice and may think the document cannot be copied.  But as we have just discussed, contract data rights clauses usually permit such copying.  

Regarding this specific question, there is no authority to remove a proper copyright notice.  Under the DFARS data rights clauses, a copyright notice is permitted, but not required (DFARS 252.227-7013(f) and 252.227-7014(f)).  In contrast, the FAR data rights clauses require that any contractor claiming copyright ownership to material first produced under a FAR contract affix a copyright notice to all copies of the works delivered to the Government (FAR 27.404(f)(1)(v)103)).  If these copyright notices are not present, the FAR states that the government has unlimited rights to use the work.  This means we could do anything we want with the work, including posting it on a publicly available Internet website.

##                                       Operations

**Contracts - Contractor’s Copyright Notice**
**If there’s no copyright notice, does that mean the work is not protected by the contractor’s copyright?**
**         ****It Depends**
**         ****FAR v. Berne Convention**
**         ****DFARS**
**         ****Abandonment**
**         **

- Copyright - DOD Contracts

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**Notes:**
Some commentators have questioned whether this last FAR data rights provision, the one that says if there is no copyright notice the government has unlimited rights, is valid.  Since 1989, there has been no requirement in the U.S. to place copyright notices on works protected by copyright.  That was the year that the U.S. adopted the Berne Convention, which eliminated any requirement to post a copyright notice in order to retain copyright protection.  Thus, by Federal statute a copyright owner need not post a copyright notice.  The FAR requirement, a regulation, seems to contradict the statute.  

However, just this year the Court of Appeals for the Federal Circuit upheld a similar FAR provision which stated that the government had unlimited rights to information submitted in an unsolicited proposal that was not marked with a restrictive legend.  The Xerxe Group, Inc. v. United States, Fed. Cir. No. 01-5055, 4 February 2002. Based upon similar reasoning, the courts might be willing to uphold the FAR copyright notice requirement. You should also note that this decision was criticized in the April 2002 Nash & Cibinic Report.  

In contrast, since the DFARS data rights clauses permit, but do not require a copyright notice, an unmarked work under a DFARS contract is presumed to be protected by copyright.  Clear evidence of abandonment, i.e., that the copyright owner had intentionally relinquished all claim to ownership, would rebut this presumption.  

##                                    Operations

**Contracts - Ownership of a Work**
** ****Doesn’t the contractor need our permission to         commercialize this work?**
**    ****Not Usually**
**    ****DFARS - ****Contractor normally owns the copyright**** **
**    **

- Copyright - DOD Contracts

- March 2003

**Notes:**
We are often asked by our clients to reassure them that the contractor needs government permission to sell a document or software application first produced under a government contract.  Our advice is usually to the contrary.  Under the DFARS, the contractor normally owns the copyright to works produced under a contract (DFARS 227.7103-9 and DFARS 252.227-7013).  Only if a special data rights clause (DFARS 252.227-7020) is inserted, would the government own the copyright.  Thus, for most DOD contracts, the contractor is free to commercialize works first produced under contract.  The underlying philosophy is that since tax dollars were spent to develop this work, it should be available to the public, and a contractor is much better at commercializing products than the government.  The potential for commercial profit should also reduce the cost to DOD. 

## Operations

**Grants**
**Grantee owns copyright, US has Federal purpose rights **
**    ****-- Nonprofits - OMB Circular A-110**
**    ****-- State & Local Gov’t - OMB Circular A-102**
**Can NTIS sell to the public?**
**      **

- Copyright - DOD Contracts

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**Notes:**
     Let’s move on to grants.  Under most grant agreements, the grantee owns the copyright to any works produced under the grant.  The Federal government grantor usually reserves a royalty free nonexclusive and irrevocable right to reproduce, publish or otherwise use the work for Federal purposes, and to authorize others to do so.  The particular grant agreement should always be reviewed to determine the specific terms and conditions.

     One instance where the grant copyright issue can surface, concerns documents that NTIS sells to the public.  What if NTIS obtains documents from the DOD that were originally generated under a grant agreement?  Since most grant agreements only authorize the U.S. the right to use these documents for Federal purposes, can NTIS sell this document to the public?  Probably not, since Federal purposes do not appear to include commercial sales.       

## Open Source Software (OSS)

**Definitions**
**Source Code**
**Public Domain Software**
**License - Users who distribute provide source code**
**                   ****- Free**
**GNU GPL (General Public License)**
**Linux**
**DOD Q&A**** at **_**[http://www.disa.mil/pao/opensourcev16.html](http://www.disa.mil/pao/opensourcev16.html)**_

- Copyright - DOD Contracts

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**Notes:**
Before discussing some issues surrounding the use of OSS, let’s first define some terms.  Source code is the human readable form of the instructions for a software program or application.  Public domain software is software where this source code is publicly available for anyone’s use.  The press and the public often refer to public domain software as OSS because the source code is accessible.  In contrast, many members of the software community use the phrase OSS more restrictively.  Under this second definition, "open source software" refers to an approach that aggressively seeks to keep source code available to future, as well as current users of software. This is accomplished by software licenses that require users who redistribute open source software, to provide all the source code, even when the user has modified the original software.  Thus, OSS allows the public the ability to tinker with and improve upon an application.  But perhaps most significantly, OSS also frees a user from the necessity of maintaining a close relationship with the application’s provider.  The user of OSS is now free to go elsewhere for future services.  The most common OSS license is the GNU GPL, which gives all software users the right to freely copy and redistribute the software, access its source code, and fix or improve a software application by altering its source code.  The most well known form of OSS is Linux, an operating system for PCs.   DOD has published a Q&A on OSS, which attempts to clarify what OSS is, so that all parties can engage in an informed discussion about its pros and cons.   

## Open Source Software (OSS)

**Issues**
**Security**
**Viable Business Model**

- Copyright - DOD Contracts

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**Notes:**
Let’s briefly consider two issues.  First, is OSS a security risk? Today, there is no definitive answer.  In general, exposing source code increases the risk of a successful hacking attack by making it easier for hostile analysts to read and understand the software. This is a significant risk because analysts can thoroughly study open source code and possibly gain unexpected insights.  If the risk of making source code publicly available was the only factor to consider, the decision would invariably be to use closed software.  However, some commentators suggest that in the long term the best defense against security flaws is not to try to hide them, but rather to aggressively seek them out by using analysts with resources at least as good as those of potential hostile analysts. The more aggressive and better-supported this "friendly attack" strategy is, the more likely the software will prove resistant to hostile attacks. 
Second, does OSS threaten the future viability of the software industry? Intellectual property rights play a key role in the private sector and provide the economic incentive for firms to invest in innovative products.  If the software industry is denied necessary incentives, it will wither away and be unable to provide innovative software applications.  As you recall from earlier in this briefing, software firms have traditionally been able to commercialize applications initially developed under DOD contracts.  But, if those applications are to be governed by OSS licenses, this source of profitability will dry up.  Can the software industry survive if this resource is no longer available?            

.

## Summary

**Copyright - DOD Contracts **
**Guidance**
**Operations**
**Open Source Software**
**   **

- Copyright - DOD Contracts

- March 2003

**Notes:**
What have we learned?

1.  A contractor’s copyright notice does not usually prevent the government from copying a document first produced under a government contract. There are exceptions, but the DFARS data rights clauses normally provide the government unlimited rights to use such works, whereas the FAR data rights clauses allow the government to use a work for government purposes.

2.  If it is proper, there is no authority to remove a contractor’s copyright notice.  The DFARS permits, while the FAR requires such notices.

3.  Under the DFARS, an unmarked work is protected by copyright absent evidence of abandonment. In contrast,  under the FAR, the government has unlimited rights to works without a copyright notice.

## Summary

**Copyright - DOD Contracts **
**Guidance**
**Operations**
**Open Source Software**

- Copyright - DOD Contracts

- March 2003

**Notes:**
4.  The contractor normally owns the copyright to works first produced under a government contract.  Contractors do not need government permission to commercialize works they own.  

5.  Under most grant agreements, the grantee owns the copyright to any works produced under the grant, while the Federal government usually reserves a license to use the work for Federal purposes.

6.  Open source software introduces new issues for DOD contracting.  Although software experts perceive OSS to be as secure as proprietary software, there is no definitive answer today for this issue.  OSS also threatens to change the DOD business model for proprietary software firms.  Whether firms will be able to continue commercializing applications developed under DOD contracts is an open issue.           

Any questions?