FAR 52.227-18—Rights in Data-Existing Works.
Plain-English Summary
FAR 52.227-18, Rights in Data-Existing Works, sets the Government’s license rights and the contractor’s indemnity obligations for existing works or other material made subject to the clause under a contract. It addresses the Government’s paid-up, nonexclusive, irrevocable, worldwide right to reproduce, prepare derivative works, and publicly perform and display the covered material, which is important when the Government needs to use, share, or adapt deliverables without paying additional royalties. The clause also requires the contractor to protect the Government against certain third-party claims involving trade secrets, copyrights, privacy or publicity rights, and libel or other unlawful matter arising from the creation, delivery, publication, or use of the data. It further limits that indemnity by requiring prompt notice, an opportunity for the contractor to participate in the defense, and contractor consent to settlement except where a court order controls. In practice, this clause is about balancing Government use rights in existing works with risk allocation for intellectual property and content-related claims, so both contracting officers and contractors need to understand exactly what data or material is covered and what liabilities may follow from its use.
Key Rules
Government gets broad license
The contractor grants the Government and those acting on its behalf a paid-up, nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, and publicly perform and display the covered material. This means the Government can use the material for the purposes covered by the contract without paying additional license fees.
Applies to covered material
The license applies to the material or subject matter called for under the contract, or to which the clause is specifically made applicable. The practical scope depends on the contract language and what data or works are actually identified as covered.
Contractor indemnifies Government
The contractor must indemnify the Government, its officers, agents, and employees against liability, costs, and expenses arising from violations of trade secrets, copyrights, privacy or publicity rights, or from libelous or other unlawful matter in the data furnished under the contract.
Notice and defense conditions
The indemnity does not apply unless the Government gives the contractor prompt notice of the claim or suit, allows the contractor to participate in the defense as permitted by law, and obtains the contractor’s consent before settling, except when a court order requires otherwise.
Government-furnished material exception
The indemnity does not apply to material furnished by the Government and incorporated into data covered by the clause. In other words, the contractor is not responsible under this paragraph for claims tied to Government-provided content that the contractor merely incorporated.
Clause works with contract terms
The clause begins with 'except as otherwise provided in this contract,' so other contract provisions can modify or limit these rights and obligations. Contracting officers should check for consistency with special license terms, data rights provisions, and any negotiated exceptions.
Responsibilities
Contracting Officer
Ensure the clause is inserted when prescribed, identify the specific material or subject matter to which it applies, and make sure any other contract terms do not conflict with the license and indemnity language. The contracting officer should also understand whether special restrictions or negotiated rights are needed for the acquisition.
Contractor
Provide the covered data or existing works with the Government license described in the clause, and defend and indemnify the Government against covered third-party claims when the clause’s conditions are met. The contractor should also track what content is furnished, what rights it has in that content, and whether any third-party permissions are needed.
Government
Use the covered material within the scope of the license, provide prompt notice of claims or suits, allow contractor participation in the defense as required, and obtain contractor consent before settling unless a court decree controls. The Government must also avoid treating Government-furnished material as if it were contractor-risk material under the indemnity paragraph.
Agency Program/Technical Staff
Clearly identify deliverables, existing works, and any incorporated third-party or Government-furnished content so the contracting file and contract language accurately reflect what is covered. They should flag potential copyright, privacy, publicity, or defamation issues early.
Practical Implications
This clause gives the Government strong use rights, so contractors should not assume they can later restrict reproduction or public display of covered material unless the contract says otherwise.
The indemnity can create significant risk if the contractor uses third-party content without proper rights clearance, especially for images, text, software-related materials, or other copyrighted works.
Prompt notice and settlement consent matter: if the Government handles a claim without following the clause’s conditions, the contractor may have a defense against indemnity obligations.
Contractors should maintain records showing what was furnished, what was Government-furnished, and what permissions or licenses were obtained from third parties.
Contracting officers should verify that the clause is appropriate for the acquisition and that any special data-rights or license limitations are clearly written into the contract to avoid disputes later.
Official Regulatory Text
As prescribed in 27.409 (f) , insert the following clause: Rights in Data-Existing Works (Dec 2007) (a) Except as otherwise provided in this contract, the Contractor grants to the Government, and others acting on its behalf, a paid-up nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, and perform publicly and display publicly, by or on behalf of the Government, for all the material or subject matter called for under this contract, or for which this clause is specifically made applicable. (b) The Contractor shall indemnify the Government and its officers, agents, and employees acting for the Government against any liability, including costs and expenses, incurred as the result of (1) the violation of trade secrets, copyrights, or right of privacy or publicity, arising out of the creation, delivery, publication or use of any data furnished under this contract; or (2) any libelous or other unlawful matter contained in such data. The provisions of this paragraph do not apply unless the Government provides notice to the Contractor as soon as practicable of any claim or suit, affords the Contractor an opportunity under applicable laws, rules, or regulations to participate in the defense of the claim or suit, and obtains the Contractor’s consent to the settlement of any claim or suit other than as required by final decree of a court of competent jurisdiction; and do not apply to material furnished to the Contractor by the Government and incorporated in data to which this clause applies. (End of clause)