“To help clear up these murky waters, this post will be the first in a series of posts reviewing some of the basics of intellectual property rules in government contracts. We will start by going over data rights, as perhaps no subject in this field is more difficult than dealing with data rights. While I think we’re getting to the point in history where we can stop referring to computers and the internet as a novel technology (The internet as we know it is over thirty years old!), the law around data rights is still relatively new and rough around the edges. In this post, we will review the general concept and the rules regarding ‘unlimited rights’ in data…”
“FAR 52.227-14 states ‘data’ ‘means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.’ This differs from patent and copyrights. Patents are intellectual property rights in an invention or discovery itself, per 35 U.S.C. § 101. Copyright is a property right in the particular way in which something is expressed or communicated, such as a book or recording, but doesn’t cover the underlying information itself, per 17 U.S.C. § 102. Data is basically that underlying information…”
“The most straightforward of the classes is ‘unlimited rights,’ and, for the most part, it’s what it says on the label. “Unlimited rights means the rights 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, and to have or permit others to do so.” FAR 27.401. In effect, if the government has unlimited rights in data, it is the owner (or at least co-owner) of that data. It can do whatever it wants with it. If you see the words ‘unlimited rights’ regarding data (or really in any context in a contract), that should set off alarm bells…”
“’Data first produced in the performance of a contract’ is really what it sounds like it is: if the data did not exist until the contractor started performing on the contract, and it comes from that performance of the contract, it is data first produced in the performance of a contract. See Ervin & Assocs., Inc. v. United States, 59 Fed. Cl. 267, 295 (2004), aff’d, 120 F. App’x 353 (Fed. Cir. 2005). This makes sense, as often this data is precisely what the government is trying to obtain with the procurement. Even if it is incidental, it is clearly tied to the procurement, as it wouldn’t have been produced had the contract not been made. The language is mostly unqualified too: if it’s produced in performing a contract, it’s the government’s data…” Read the full article here.
Source: Data Rights and the Government Contractor: An Introduction and Unlimited Data Rights – By John Holtz, November 1, 2021. SmallGovCon.
