[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25247]


[[Page Unknown]]

[Federal Register: October 13, 1994]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1827 and 1852

[NFS Case 940013]

RIN 2700-AB72

 

NASA FAR Supplement; Assignment of Copyright in Software

AGENCY: Office of Procurement, Acquisition Liaison Division, National 
Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: This is a revision of the NASA FAR Supplement (NFS), to allow 
the Contracting Officer to direct the Contractor to establish claim to 
copyright in computer software and assign the copyright to the 
Government or another party. Assignment to the Government can only be 
directed when the Contractor has not previously been granted permission 
to establish copyright on its own behalf. This is needed because 
existing contract clauses do not provide this authority for some types 
of contracts.

DATES: Comments are due on or before December 12, 1994.

ADDRESSES: Comments should be addressed to: National Aeronautics and 
Space Administration, Acquisition Liaison Division (Code HP/Beck), 
Washington, DC 20546. Please cite HP number 940013 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT:
Nina Lawrence, (202) 358-2424, or David K. Beck, (202) 358-0482.

SUPPLEMENTARY INFORMATION:

A. Background

    FAR clause 52.227-14, Rights in Data--General, as modified by the 
NASA FAR Supplement (NFS), currently allows contractors to establish 
copyright in software developed under the contract. The clause also 
currently requires contractors to obtain the Contracting Officer's 
permission prior to exercising this right. This revision will not 
restrict this right. However, if a contractor is not interested in 
obtaining copyright, or developing the software, and is unwilling to 
assign the copyright to NASA or its designee, no copyright can be 
claimed for the software. In many, if not most, cases this does not 
matter. However, in some situations where further development of 
software is needed before the software can be marketed, the U.S. 
private sector may be unwilling to invest in developing and marketing 
the software without the availability of copyright protection. This 
revision will provide authority to acquire assignments of copyright in 
such situations.
    It is NASA's intent to announce to the public the availability of 
licensable software and the criteria which will be utilized in 
selecting licensees. Exclusive and partially exclusive licenses will be 
granted only after public notice and opportunity to file written 
objections.
    FAR 27.404(g)(3) authorizes agencies to include contractual 
requirements to assign copyright to the Government or another party. 
The FAR further directs that any such requirements established by 
agencies should be added to clause 52.227-14, Right in Data--General. 
This authority is the same as is presently contained in FAR clause 
52.227-17, Rights in Data--Special Works. That clause is specifically 
tailored for acquisitions where data is the main deliverable; it lacks 
many elements necessary in contracts involving a mix of deliverables. 
The proposed revision will result in a clause that more appropriately 
addresses NASA's needs in acquisitions involving mixed deliverables. 
Further, with the increased emphasis in recent years on promoting U.S. 
competitiveness and the commercialization of Government-generated 
technology, it is important that we take steps to protect computer 
software that has a significant technology transfer value. The 
availability of copyright protection will enable NASA to enhance U.S. 
competitiveness and more effectively transfer valuable computer 
software technology.
    This revision does not apply to or affect contracts for basic or 
applied research with a university or college (see NFS 1827.404(e)(1) 
or 1827.409(e)).

B. Executive Order 12866

    The Office of Information and Regulatory Affairs has determined 
that this rule is significant under E.O. 12866. This regulation is 
needed on an urgent and compelling basis because valuable computer 
software developed under NASA contracts may become part of the public 
domain, and thereby lose its value, if the software is not copyrighted. 
Current regulations grant the contractor the right to request 
permission to establish copyright, but there is no procedure to force 
the contractor to exercise that right or to transfer the copyright to 
the Government. The regulation meets the need, i.e., provides 
protection for the software's value, by allowing NASA to direct the 
contractor to establish copyright and assign the copyright to NASA or 
another party. The potential costs for this regulatory action are 
limited to the nominal costs involved in establishing and transferring 
copyright. These costs may vary, but are estimated to be less than $100 
per copyright, and it is anticipated that less than 10 contractors 
annually would each be required to incur this expense one time. Because 
the contracts under which valuable software is likely to be developed 
are usually cost-reimbursable research and development contracts, the 
costs for copyright and transfer would normally be charged to the 
Government. The potential benefits are the value of the protected 
software; this value cannot be measured, as it depends on future 
discoveries and developments. This value cannot be considered to be 
taken away from contractors, because it never belonged to them.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the NASA FAR Supplement do not impose any new recordkeeping 
or information collection requirements, or new collections of 
information from offerors, contractors, or members of the public which 
require the approval of the Office of Management and Budget (OMB) under 
44 U.S.C. 3501, et seq.

D. Regulatory Flexibility Act

    NASA certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

List of Subjects in 48 CFR Parts 1827 and 1852

    Government procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.

    Accordingly, 48 CFR Parts 1827 and 1852 are proposed to be amended 
as follows:
    1. The authority citation for 48 CFR Parts 1827 and 1852 continues 
to read as follows:

    Authority: 42 U.S.C. 2473(c)(1).

PART 1827--PATENTS, DATA, AND COPYRIGHTS

    2. In Sec. 1827.404, paragraph (e)(1) is revised and paragraph 
(e)(4) is added to read as follows:


1827.404  Basic rights in data clause.

* * * * *
    (e) * * *
    (1) Subparagraph (3) (see 1827.409(e) and 1852.227-14) is to be 
added to paragraph (d) of the clause at (FAR) 48 CFR 52.227-14, Rights 
in Data--General, whenever that clause is used in any contract other 
than one for basic or applied research with a university or college. 
Paragraph (d)(3)(i) of the clause provides that the contractor may not 
establish claim to copyright, publish, or release to others computer 
software first produced in the performance of a contract without the 
contracting officer's prior written permission. This is in accordance 
with NASA policy and procedures for the distribution of computer 
software developed by NASA and its contractors, as set forth in NASA 
Management Instruction 2210.2 and NASA Handbook 2200.2, NASA Scientific 
and Technical Information Handbook.
* * * * *
    (4) If the contractor has not been granted permission to copyright 
in accordance with paragraphs (e)(1) and (e)(2) of this section, 
paragraph (d)(3)(ii) of the clause at (FAR) 48 CFR 52.227-14, Rights in 
Data--General (as modified by 1852.227-14), enables NASA to direct the 
contractor to establish claim to copyright in computer software first 
produced under the contract and to assign, or obtain the assignment of, 
such copyright to the Government or its designee. The Contracting 
Officer may, in consultation with the installation patent or 
intellectual property counsel, so direct the contractor in situations 
where copyright protection is considered necessary in furtherance of 
agency mission objectives, needed to support specific agency programs, 
or necessary to meet statutory requirements.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    (3) In section 1852.227-14, paragraph (3) is redesignated as 
paragraph (3)(i) and a new paragraph (3)(ii) is added as follows:


1852.227-14  Rights in Data--General.

* * * * *
    (3)(i) * * *
    (ii) If the Government desires to obtain copyright in computer 
software first produced in the performance of this contract and 
permission has not been granted as set forth in paragraph (d)(3)(i) 
of this clause, the Contracting Officer may direct the Contractor to 
establish, or authorize the establishment of, claim to copyright in 
such data and to assign, or obtain the assignment of, such copyright 
to the Government or its designated assignee.
[FR Doc. 94-25247 Filed 10-12-94; 8:45 am]
BILLING CODE 7510-01-M