Technical Data Rights- Who Cares……….

Introduction n Why Do I Need To Know This? – Acquiring Tech Data is expensive – Dynamic environment, each situation unique – Engineers/Program managers are the users/customers – Need engineering/technical background to enforce/negotiate Gov’t rights

Today’s Briefing n Define Terms of Art – Distinguish from common usage n Explain Rights Gov’t may acquire n Explain funding principles behind those rights

Data Rights n Entirely different from the laws of patents and copyrights n DoD’s Data Rights rules unique and unlike the commercial world n Even civilian agencies (FAA, DOE) have rules different than DoD – Different needs for intellectual property

Definitions n Data Rights: Different classes of licenses that the Government may purchase by contract è The Government does not “own” the data è We have a “license” to use the data in a particular way, for particular purposes

Definitions n Technical Data: è Almost every kind of written data describing or documenting a product, method, or process. è Any recorded technical information about a supply or service that is the subject of a Federal acquisition (must be delivered under the contract, or deliverable)

Definitions n NOT Technical Data: è Data describing the contractor itself, or information incidental to performance of a contract (corporate information such as G&A, overheads, salaries, etc.) è Oral communications or information never recorded è Physical manifestations of technical data, such as the very product whose design is described in the data.

Categories n Unlimited Rights n Limited Rights n Restricted Rights n Government Purpose Rights n Standard Commercial License Rights n Non Standard Rights

Categories n Unlimited Rights è Permits the Government to use technical data and computer software without any limits whatsoever, including offering the data to other companies for their competition with the owner of the data or software in the Commercial marketplace as well as in the Government marketplace.

Categories n Limited Rights: è Permit the Government to make internal use of data, but does not permit disclosure outside the Government except in very limited circumstances n We may only share the information with other federal employees. If we need to share it with our support contractors or other non-government personnel we must get the written permission of the owner of the data, and the recipient must sign a non- disclosure agreement.

Categories n Restricted Rights: è These apply only to computer software and generally restrict the Government’s use to a single computer per copy of the software, and prohibit all but backup or archival copies.

Categories n Government Purpose Rights: è Permit the Government to use data or software for any “Government Purpose” which does not include competition against the owner of the data or software in the commercial marketplace n We may only disclose to our contractors if they need the data to further a government purpose (to perform their contract, for example), and the contractor must sign a non-disclosure agreement.

Categories n Standard Commercial License Rights: è Rights provided by the contractor in a license that accompanies commercial software. In most contexts, the Government is obligated to abide by the commercial license accompanying commercial software.

Categories n Nonstandard Rights: è Also called “Special” or “Specifically Negotiated” Rights è Any rights negotiated by the contractor and agency that are different than the foregoing classes of rights. è Degree to which these are permitted depends on the particular regulations applicable to the procurement

Source of Funding n The category of rights the Government takes usually depends on the source of funds used to develop the item shown in the data è If Government only, we normally receive unlimited rights in the data è If the cost is shared with the contractor, we receive Government Purpose rights, at a minimum è If privately funded (contractor brings to the table a technology previously developed with their private funds), we receive only limited/restricted rights

Contract Clauses n FAR —does not apply to DoD contracts—See FAR 27.4 n DFARS n Others in the DFARS 227 series as applicable

Points to Remember n “Proprietary” is NOT a valid marking restricting Data n Contracting Officers MUST defend the rights of the Government. MUST challenge incorrect/non- conforming markings n Failure to properly defend the Government’s rights can result in forfeiture n Closely coordinate with LEGAL on issues concerning Data Rights

Questions?????