Copyright, existing works and special works

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1. The copyright license inside the data clause

Rights in technical data under the Defense Federal Acquisition Regulation Supplement (DFARS) include a copyright license. The noncommercial technical data clause and the small business research clause require the contractor to grant or obtain such a license for the government (DFARS 227.7103-9(a)(1)). It covers reproducing data, distributing copies, publicly performing or displaying the data and, through the right to modify, preparing derivative works. How far the government and those acting for it may exercise those rights varies with the standard data license obtained.

When nonstandard rights in technical data are negotiated, the extent of the copyright license is negotiated at the same time (DFARS 227.7103-9(a)(1)). The contracting officer may not negotiate a copyright license giving less than the standard limited rights license in technical data.

2. Third-party material in deliverables

Those clauses do not let a contractor put a third party’s copyrighted data into a deliverable data item without one of two things (DFARS 227.7103-9(a)(2)). The contractor must either obtain an appropriate license for the government and, where applicable, those acting for it, or get the contracting officer’s written approval. Approval to use third-party copyrighted data without a copyright license for the government is granted only in two cases. The government’s requirements must be impossible to meet without the material, or using it must save costs that outweigh the lack of a license.

3. Existing works

Existing works are things like motion pictures, television and video recordings and other audiovisual works, sound recordings, musical, dramatic and literary works, pantomimes, choreography, and pictorial, graphic and sculptural works (DFARS 227.7105-1(a)). Usually such works were not first created under a government contract. The government must therefore obtain a license if it intends to reproduce the work, distribute copies, prepare derivative works, or perform or display it publicly. When it is not responsible for a work’s content, it should require the copyright owner to indemnify it for liabilities arising from the content, performance, use or disclosure.

The clause at DFARS 252.227-7021, rights in data for existing works, replaces the noncommercial data clause in contracts exclusively for existing works acquired without modification (DFARS 227.7105-2(a)). It is used when the government needs the right to reproduce, prepare derivative works or publicly perform or display the works, or has a specific need for indemnity. It gives the government and those acting for it a paid-up, nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, publicly perform or display the works, and authorize others to do so for government purposes (DFARS 227.7105-2(b)).

No contract clause is needed to acquire existing works such as books, magazines and periodicals, in any storage or retrieval medium, when the government will not reproduce them or prepare derivative works (DFARS 227.7105-2(c)). Contracts for modified existing works use the special works clause, DFARS 252.227-7020, instead of the existing works clause (DFARS 227.7105-3).

4. New works the government must control

Works first created under a government contract follow the special works rules when the government needs to control their distribution, or has a specific need for indemnity (DFARS 227.7105-1(b)). The indemnity may cover liabilities from creation, content, performance, use or disclosure, or from libelous or other unlawful material. Where neither need exists, the ordinary technical data rules apply.

The special works clause is used where the government has a specific need to control distribution of works first produced under a contract and required to be delivered, including by taking an assignment of copyright (DFARS 227.7106(a)). It is also used where the government has a specific need for indemnity against liabilities arising from the works. The clause replaces the noncommercial data clause when the government must own or control copyright in all works first produced and delivered under the contract. It is added alongside that clause when the government must control copyright in a portion of a work, which must be identified in a special contract requirement.

5. What the contractor keeps

Under the special works clause the government obtains an assignment of copyright and unlimited rights in a special work, but the contractor keeps use and disclosure rights in it (DFARS 227.7106(b)). If the government needs to restrict those rights, it must also negotiate a special license that specifically restricts the contractor’s use or disclosure.

The special works clause does not let a contractor include works copyrighted by others in a special work without two things (DFARS 227.7106(c)). It needs the contracting officer’s permission, and it must obtain for the government a nonexclusive, paid-up, worldwide license covering copies, derivative works, public performance or display, and authorizing others for government purposes. Permission is granted only when the government’s requirements cannot be met without the third-party work. The software rules take the same approach to software and documentation delivered as special works, where the contractor likewise keeps use and disclosure rights (DFARS 227.7205(b)).

6. Examples of special works

The DFARS gives examples of works that may be bought under the special works clause, without limiting the list (DFARS 227.7106(d)). They include audiovisual works, computer databases, computer software documentation, scripts, soundtracks, musical compositions and adaptations. They also include histories of departments, agencies, services or units, and surveys of government establishments. Instructional works and guidance to government officers and employees on their official duties appear on the list, as do reports, books, studies and surveys.

The list also covers collections of data about individuals whose disclosure would violate their right of privacy or publicity, and investigative reports (DFARS 227.7106(d)). The general copyright guidance points to these rules for existing and special works that are not small business research data (DFARS 227.7103-9(b)). The standard data licenses are covered in how funding sets technical data rights.

Key terms

Copyright license	Rights to reproduce, distribute, perform, display and prepare derivative works, built into the data clauses.
Existing work	A work usually not first created under a government contract, such as a recording or book.
Special work	A work first produced under a contract whose distribution the government must control.
Assignment of copyright	Transfer of copyright to the government under the special works clause.
Indemnity	Protection against liabilities from a work’s content, use or disclosure.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Training and reference material for programs abroad often falls under these rules. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.