27.404-3 Copyrighted works.

(a) Data first produced in the performance of a contract.

(1) Generally, the contractor must obtain permission of the contracting officer prior to asserting

rights in any copyrighted work containing data first produced in the performance of a contract.

However, contractors are normally authorized, without prior approval of the contracting officer, to

assert copyright in technical or scientific articles based on or containing such data that is published

in academic, technical or professional journals, symposia proceedings and similar works.

(2) The contractor must make a written request for permission to assert its copyright in works

containing data first produced under the contract. In its request, the contractor 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 the permission is

requested. Generally, a contracting officer should grant the contractor’s request when copyright

protection will enhance the appropriate dissemination or use of the data unless the-

(i) Data consist of a report that represents the official views of the agency or that the agency is

required by statute to prepare;

(ii) Data are intended primarily for internal use by the Government;

(iii) Data are of the type that the agency itself distributes to the public under an agency program;

(iv) Government determines that limitation on distribution of the data is in the national interest; or

(v) Government determines that the data should be disseminated without restriction.

(3) Alternate IV of the clause at 52.227-14 provides a substitute paragraph (c)(1) granting

permission for contractors to assert copyright in any data first produced in the performance of the

contract without the need for any further requests. Except for contracts for management or

operation of Government facilities and contracts and subcontracts in support of programs being

conducted at those facilities or where international agreements require otherwise, Alternate IV shall

be used in all contracts for basic or applied research to be performed solely by colleges and

universities. Alternate IV shall 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 that it is not necessary for a contractor to request further

permission to assert copyright in data first produced in performance of the contract. The contracting

officer may exclude any data, or items or categories of data, from the provisions of Alternate IV by

expressly so providing in the contract or by adding a paragraph (d)(4) to the clause, consistent with

27.404-4(b).

(4) Pursuant to paragraph (c)(1) of the clause at 52.227-14, the contractor grants the Government 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 data (other than computer software) first produced in the performance of a contract. For

computer software, the scope of the Government’s license includes all of the above rights except the

right to distribute to the public. Agencies may also obtain a license of different scope if the

contracting officer determines, after consulting with legal counsel, such a license will substantially
enhance the dissemination of any data first produced under the contract or if such a license is

required to comply with international agreements. If an agency obtains a different license, the

contractor shall clearly state the scope of that license in a conspicuous place on the medium on

which the data is recorded. For example, if the data is delivered as a report, the terms of the license

shall be stated on the cover, or first page, of the report.

(5) The clause requires the contractor to affix the applicable copyright notices of 17 U.S .C. 401 or 4

02, and acknowledgment of Government sponsorship, (including the contract number) to data when

it asserts copyright in data. Failure to do so could result in such data being treated as unlimited

rights data (see 27.404-5(b)).

(b) Data not first produced in the performance of a contract.

(1) Contractors shall not deliver any data that is not first produced under the contract without

either-

(i) Acquiring for or granting to the Government a copyright license for the data; or

(ii) Obtaining permission from the contracting officer to do otherwise.

(2) The copyright license the Government acquires for such data will normally be of the same scope

as discussed in paragraph (a)(4) of this subsection, and is set forth in paragraph (c)(2) of the clause

at 52.227-14. However, agencies may obtain a license of different scope if the agency determines,

after consultation with its legal counsel, 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.

If the contractor delivers computer software not first produced under the contract, the contractor

shall grant the Government the license set forth in paragraph (g)(4) of Alternate III if included in the

clause at 52.227-14, or a license agreed to in a collateral agreement made part of the contract.

Parent topic: 27.404 Basic rights in data clause.