[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
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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
