FAR 27.404-3—Copyrighted works.
Plain-English Summary
FAR 27.404-3 explains how copyright works when data are delivered under a federal contract, focusing on two major categories: data first produced in performance of the contract and data not first produced under the contract. It tells contractors when they must get the contracting officer’s permission before asserting copyright, when permission is normally granted, and when permission is not needed because the contract uses Alternate IV of the clause at 52.227-14. It also addresses the Government’s license rights in copyrighted data, including the standard paid-up, nonexclusive, irrevocable, worldwide license and the special treatment of computer software. The section further covers when agencies may negotiate a different license scope, how that must be documented, and the requirement to mark data with the proper copyright notice and Government sponsorship acknowledgment. In practice, this section is about balancing contractor copyright protection with the Government’s need to use, reproduce, and disseminate data, while ensuring the contract and delivered data clearly reflect the rights granted.
Key Rules
Permission for first-produced data
As a general rule, a contractor must obtain the contracting officer’s permission before asserting copyright in any copyrighted work containing data first produced in performance of the contract. The main exception is for technical or scientific articles based on or containing such data that are published in journals, symposia proceedings, and similar outlets, which contractors are normally authorized to copyright without prior approval.
Written request required
When permission is needed, the contractor must submit a written request identifying the data or providing copies, and explaining the intended publication, dissemination medium, or other purpose. The contracting officer should generally approve the request when copyright protection will improve dissemination or use of the data, unless one of the listed Government interests applies.
When approval may be denied
The contracting officer should not grant permission if the data are an official agency report or statutorily required report, intended mainly for internal Government use, already distributed to the public under an agency program, subject to a national security or other national interest restriction, or determined by the Government to require unrestricted dissemination.
Alternate IV simplifies approval
Alternate IV to FAR 52.227-14 can replace the normal permission process by allowing the contractor to assert copyright in any data first produced under the contract without further requests. It must be used for most basic or applied research contracts performed solely by colleges and universities, except in certain facility-management or international-agreement situations, and it may not be used when the contract’s purpose includes developing computer software for public distribution by or on behalf of the Government.
Government license in first-produced data
When the contractor asserts copyright under paragraph (c)(1), the Government receives a paid-up, nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, distribute, perform, and display the data for Government purposes. For computer software, the Government gets the same rights except the right to distribute to the public.
Different license scopes must be documented
An agency may obtain a license with a different scope if the contracting officer, after consulting legal counsel, determines that it will substantially improve dissemination or is needed to comply with international agreements. Any different license must be stated in the contract and clearly shown on the delivered data in a conspicuous place.
Copyright notice and sponsorship acknowledgment
If the contractor asserts copyright in data, it must place the applicable copyright notice under 17 U.S.C. 401 or 402 and include acknowledgment of Government sponsorship, including the contract number. If the contractor fails to do this, the data may be treated as unlimited rights data.
Rules for data not first produced
For data not first produced under the contract, the contractor may not deliver the data unless it either secures or grants the Government a copyright license, or obtains permission from the contracting officer to do otherwise. The Government’s license is normally the same scope as for first-produced data, but a different scope may be negotiated if consistent with the purpose of acquiring the data.
Special rule for outside software
If the contractor delivers computer software not first produced under the contract, it must grant the Government the license in Alternate III, paragraph (g)(4), if that clause is included, or another license agreed to in a collateral agreement made part of the contract.
Responsibilities
Contracting Officer
Review contractor requests to assert copyright in first-produced data, approve them when appropriate, and deny them when the listed Government interests apply. Decide whether Alternate IV should be used, whether any data should be excluded from Alternate IV, and whether a different license scope is justified after consulting legal counsel.
Contractor
Seek written permission before asserting copyright in covered first-produced data unless an exception applies, identify the data and intended use in the request, apply the required copyright notice and Government sponsorship acknowledgment, and ensure any non-first-produced data is delivered only with an appropriate license or permission. For software, provide the required license or follow the agreed collateral agreement.
Agency
Determine whether Alternate IV is appropriate for the contract type, decide whether a different license scope is needed to enhance dissemination or satisfy international agreements, and ensure the contract clearly states any special license terms or exclusions.
Legal Counsel
Advise the contracting officer when the agency is considering a different license scope for data or software, especially where dissemination, international agreements, or contract purpose may affect the Government’s rights.
Practical Implications
Contractors cannot assume they may copyright all deliverables; they must first determine whether the data were first produced under the contract and whether the clause or an alternate clause changes the approval process.
The copyright notice and Government sponsorship acknowledgment are not optional housekeeping items; missing them can cause the data to be treated as unlimited rights data, which can significantly expand Government use rights.
Agencies should decide early whether Alternate IV is appropriate, especially for university research contracts, because it can eliminate repeated permission requests and reduce administrative friction.
When data are not first produced under the contract, the parties need to address copyright licensing up front; otherwise delivery can be blocked or the Government may receive broader rights than intended.
Any special or narrower license scope must be clearly written into the contract and visibly marked on the delivered data, or later disputes over rights and reuse are likely.
Official Regulatory Text
(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.