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Interim Internal Purchasing Guidelines > 8 Patents and Data Rights > 8.3 Rights in Data
8.3.1 Definitions
8.3.1.a Computer. A device capable of accepting data, performing prescribed
operations on the data, and supplying the results of those operations. It
includes any device that operates on (1) discrete data by performing
arithmetic and logic processes on the data or (2) analog data by performing
physical processes on the data.
8.3.1.b Computer Database. A collection of data in a form capable of being
processed and operated on by a computer.
8.3.1.c Computer Program. Instructions or statements including, but not limited to,
source code, object code, and algorithms, in computer usable form, that
cause a computer to perform specified operations. Computer programs may
be machine-dependent or machine-independent, and may be general or
specific in purpose.
8.3.1.d Computer Software. Computer programs, computer databases, and their
documentation.
8.3.1.e Computer Software Documentation. Information, including computer listings
and printouts in human-readable form, that (1) documents the design or detail
of computer software, (2) explains its capabilities, or (3) provides operating
instructions for using it.
8.3.1.f Data. Recorded information, regardless of form or the medium on which it
may be recorded. The term includes technical data and computer software.
The term does not include information incidental to contract administration,
such as financial, administrative, cost or pricing, or management information.
8.3.1.g Firmware. Hardware-embedded and hardware-oriented programming that is
used for machine control, error recovery, mathematical functions, applications
programs, and the like, including firmware furnished with a computer,
commercially available proprietary firmware acquired separately, and all
related vendor documentation and manuals.
8.3.1.h Form, Fit, and Function Data. Data relating to an item component, or process
that is sufficient to enable physical and functional interchangeability, as well
as data identifying source, size, configuration, mating and attachment
characteristics, functional characteristics, and performance requirements;
except that for computer software, it means data identifying origin, functional
characteristics, and performance requirements but specifically excludes the
source code, algorithm, process, formulas, and machine-level flow charts of
the computer software.
8.3.1.i Limited Rights. The rights of the Postal Service in limited rights data, as set
forth in a Limited Rights Notice if included in a data rights clause of the
contract.
8.3.1.j Limited Rights Data. Data, other than computer software, developed at
private expense.
8.3.1.k Restricted Computer Software. Computer software developed at private
expense that is a trade secret, is commercial or financial and confidential or
privileged, or is published copyrighted computer software, including minor
modifications of this computer software.
8.3.1.l Restricted Rights. The rights of the Postal Service in restricted computer
software, as set forth in a Restricted Rights Notice included in a computer
software rights clause of the contract, or as otherwise may be included or
incorporated in the contract.
8.3.1.m Technical Data. Data, other than computer software, of a scientific or
technical nature.
8.3.1.n Unlimited Rights. The rights of the Postal Service in technical data and
computer software to use, disclose, reproduce, prepare derivative works,
distribute copies to the public, and perform and display publicly, in any
manner and for any purpose, and to have or permit others to do so.
8.3.2.a General. The Postal Service acquires only the technical data, computer
software and firmware and the rights to them essential to its business and
competitive objectives, including such things as operation and maintenance
of equipment and supply items, dissemination of research and development
contract data to users, recoupment of investments in technology or product
developments and position in the competitive marketplace, personnel
training, inspection and quality assurance, logistics support, and packaging.
These needs must be balanced against the valid economic interest that
commercial organizations have in technical data and computer software
developed at their own expense for competitive purposes.
8.3.2.b Unlimited Rights in Data
1. Unless 8.3.2.c applies, technical data in the following categories must
be acquired with unlimited rights (except for copyrights):
(a) Data first produced in the performance of a Postal Service
contract (except to the extent that it constitutes minor
modifications of data that is limited rights data).
(b) Form, fit, and function data (including such data describing
Limited Rights Data subject to the contract) delivered under the
contract.
(c) Data that constitutes manuals or instructional and training
materials for installation, operation, or routine maintenance and
repair of items, components, or processes delivered or furnished
for use under the contract (but see 8.3.2.g).
(d) All other technical data delivered under the contract unless it is
limited rights data (see 8.3.2.c).
2. If any of the foregoing data is published copyrighted data, the Postal
Service acquires it under a copyright license, as provided in 8.3.2.f,
rather than with unlimited rights.
3. Unless 8.3.2.c applies, computer software in the following categories is
acquired with unlimited rights:
(a) Computer software first produced in the performance of a Postal
Service contract (except to the extent that it constitutes minor
modifications of computer software that is restricted computer
software).
(b) Form, fit, and function data (including such data describing
restricted computer software subject to the contract) required to
be delivered under the contract.
(c) All other computer software delivered under the contract unless it
is restricted computer software.
8.3.2.c Acquisition of Rights in Data. When it has been determined by the purchase
team, with the consultation and concurrence of assigned counsel, that it is in
the best interests of the Postal Service to take title to technical data or
computer software first produced in the performance of a Postal Service
contract, Clause 8-16, Postal Service Title in Technical Data and Computer
Software, must be incorporated into the contract.
8.3.2.d Privately Developed Data
1. Data developed at private expense, including minor modifications
thereof, is usually acquired with limited rights. To assert that technical
data is limited rights data, the supplier must identify such data in
accordance with Provision 8-2, Representation of Rights in Data, and,
when it is delivered to the Postal Service, place on it the limited rights
legend required by the contract.
2. Restricted computer software normally is acquired with restricted rights.
Suppliers claiming that software is restricted computer software must
identify such software in accordance with Provision 8-2, and, when it is
delivered to the Postal Service, place on it the contract-required
restricted rights legend.
3. When computer software developed at private expense is modified or
enhanced as a necessary part of performing a contract, only that
portion of the resulting product in which the original product is
recognizable will be deemed to be computer software developed at
private expense to which restricted rights may attach.
4. A supplier's claim that data or software has been developed at private
expense must be supported by clear and convincing evidence that the
data or software was developed and is related to a workable device,
computer program, or software routine (including separately identifiable
components, modules, subsystems, and subroutines) incorporated into
larger systems or programs responsive to a contract requirement,
before Postal Service funding was introduced into the development
process.
5. The Postal Service's recognition of Limited Data Rights or Restricted
Computer Software Rights must be incorporated into the contract using
Clause 8-17, Delivery of Limited Rights Data and Restricted Computer
Software.
8.3.2.e Unmarked or Improperly Marked Technical Data or Software
1. Technical data or software received without a restrictive legend is
deemed to have been furnished with unlimited rights. However, the
contracting officer may permit the supplier to place a restrictive legend
on the technical data or software within 6 months of delivery if the
supplier demonstrates that (a) its omission was inadvertent, and (b) use
of the legend is authorized. The Postal Service has no liability with
respect to the use or disclosure of the technical data or software made
before the actual addition of the legend to the data or software.
2. Technical data or software received with a restrictive legend not
permitted by the terms of the contract may only be used with limited
rights pending inquiry to the supplier. If no response has been received
within 30 days, or if the response fails to show that the restriction is
authorized, the contracting officer may obliterate the legend, notify the
supplier accordingly, and thereafter use the technical data or software
as if it were acquired with unlimited rights.
3. If the contract authorizes the supplier to furnish technical data or
software with limited rights, but the restrictive legend employed by the
supplier is not in the form prescribed by the contract, the technical data
or software must be used with limited rights, and the supplier will be
required to amend the legend to conform with that specified in the
contract. If the supplier fails to so amend the legend within 30 days
after notice, the contracting officer may correct the legend and notify
the supplier of the action.
4. The procedures of this paragraph e may be modified in accordance
with regulations implementing the Freedom of Information Act (5 U.S.C.
552) (see 1.6.5) if necessary to respond to a request under the
Freedom of Information Act. The supplier is not precluded from bringing
a claim in connection with any dispute that may arise as the result of
the Postal Service's action to remove any markings on technical data,
unless the action occurs as the result of a final disposition of the matter
by a court of competent jurisdiction.
8.3.2.f Copyrighted Data
1. Under contracts for basic research, suppliers may establish claim to
copyright in technical or scientific articles based on, or containing, data
first produced in the performance of work under a Postal Service
contract only if the data is to be published in academic, technical, or
professional journals, symposia proceedings, or similar works.
Otherwise, the permission of the contracting officer must be obtained if
the supplier desires to establish claim to copyright in data first produced
in the performance of a contract.
2. Unless otherwise approved by the contracting officer with concurrence
of assigned counsel, whenever a supplier establishes claim to copyright
first produced in the performance of a contract, the supplier must grant
the Postal Service a paid-up, nonexclusive, irrevocable, worldwide
license to reproduce, prepare derivative works, distribute to the public,
and perform and display publicly by or on behalf of the Postal Service,
covering all such data.
3. If any data not first produced in performing a contract is subject to a
claim of copyright, the supplier may not incorporate it in data delivered
under the contract without either:
(a) Acquiring for or granting to the Postal Service copyright license
rights in it; or
(b) Obtaining permission from the contracting officer to do otherwise.
4. The copyright license the Postal Service acquires for the data in
subparagraph e.3 will normally be of the same scope as discussed in
subparagraph e.2. However, contracting officers may, on a
case-by-case basis, obtain a license of different scope if the contracting
officer determines that it is consistent 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
delivered data. In addition, if computer software not first produced in
the performance of a Postal Service contract is delivered with a claim of
copyright, the Postal Service's license will be as set forth in paragraph c
of Clause 8-9, Rights in Computer Software, or as otherwise may be
provided in a collateral agreement incorporated in or made part of the
contract.
5. If supplier action causes limited rights data or restricted computer
software to be published with the claim of copyright after the data has
been delivered to the Postal Service without a notice, the Postal
Service is relieved of disclosure and use limitations and restrictions
regarding the data, and the supplier should advise the Postal Service,
request that a copyright notice be placed on the copies of the data
delivered to the Postal Service, and acknowledge that the applicable
copyright license described in subparagraph f.2 applies.
8.3.2.g Acquisition of Additional Rights in Data
1. The Postal Service may purchase as a separately priced contract item
specific rights in privately developed data (such as unlimited rights in
limited rights data) when the contracting officer determines that there is
a clear need for these rights in order to accomplish an essential
function of the Postal Service. The acquisition of such data rights must
be based on a specific written determination of the contracting officer
evaluating all alternative methods of accomplishing the function and
demonstrating that the acquisition of data rights is the most
cost-effective method available to the Postal Service.
2. When additional rights in data are needed, it is possible that the Postal
Service does not need unlimited rights but only the right to use the data
for Postal Service purposes. One method of acquiring additional rights
is to acquire the right to direct the supplier to license other suppliers to
use the data to perform work for the Postal Service.
3. When additional rights are acquired, Clause 8-14, Acquisition of
Additional Rights in Data, must be included in the contract and the
contract schedule must list:
(a) The items, components, or processes for which additional rights
in technical data will be furnished; and
(b) The computer software for which additional rights will be
furnished.
4. This list must specify for each listed item whether the supplier will
furnish unlimited rights, limited rights, directed license rights (see
subparagraph f.2), or some other form of rights agreed to by the
parties.
8.3.2.h Manuals and Instructional Materials. Manuals or instructional and training
materials comprising technical data must be obtained with unlimited rights to
allow use by Postal Service employees and Postal Service suppliers in the
course of installation, training operation, or routine maintenance and repair of
equipment. Suppliers may request the exclusion of specified limited rights
data from the specifications for manuals or training materials. However, if the
contracting officer determines that such data is necessary to perform any of
these functions, the data must be delivered with unlimited rights.
8.3.2.i Technical Data Necessary to Procure Repair Parts
1. When a solicitation is for the development or manufacture of equipment
or a supply item that will require the future purchase of substantial
quantities of repair parts, and it appears likely that the supplier will
incorporate limited rights data in the drawings and specifications, the
contracting officer must consider including in the contract the Postal
Service right to use the data to obtain competition in procuring repair
parts. When unknown factors, such as cost, make the feasibility of
acquiring such rights uncertain, the solicitation may include the rights
as a separately priced optional line item.
2. If the solicitation contemplates the acquisition of this additional right,
Provision 8-3, Use of Limited Rights Data for Purchasing of Repair
Parts, must be included in the solicitation, and the Limited Rights Notice
in Clause 8-6, Rights in Technical Data, must be modified by Clause
8-18, Manufacture of Repair Parts.
8.3.2.j Subcontracts. It is the responsibility of the supplier to obtain from
subcontractors all the data and rights in data necessary to fulfill the supplier's
obligations under the contract. If a subcontractor refuses to accept a
supplier's terms giving the Postal Service the required data and rights in data,
the supplier must notify the contracting officer and seek approval for the
subcontract data provisions.
8.3.2.k Modification of Postal Service Rights. The Postal Service's rights in technical
data and computer software may not be modified except as provided in this
part or in 8.3.4. Acceptance from one source of technical data or computer
software subject to limited or restricted rights does not affect the Postal
Service's rights in such data or similar data acquired from other sources.
8.3.3 Data Ordering
8.3.3.a Basic Policy. To the extent that the Postal Service's requirements for data are
known at the time of contract award, the contract should specify the data to
be delivered to the Postal Service.
8.3.3.b Additional Ordering of Data. In some cases, such as experimental,
developmental, research, or demonstration contracts, it may not be feasible
to ascertain all the data requirements at the time of contract award. Clause
8-8, Additional Data Requirements, is used to enable the later ordering of
additional data as the actual requirements become known. The clause must
be used in solicitations and contracts involving experimental, developmental,
research, or demonstration work unless there is certainty that all the
requirements for data are specified in the contract. The contracting officer
may permit the supplier to identify in the contract data not to be ordered for
delivery under Clause 8-8, if that data is not necessary to meet the Postal
Service's requirements.
8.3.4.a Supplier's Representation
1. When the Postal Service needs title to data first developed under the
Postal Service contract or data with unlimited rights, but there is a
possibility that one or more offerors will propose to deliver technical
data or computer software with restrictions on use or disclosure, the
solicitation must contain Provision 8-2, Representation of Rights in
Data.
2. The solicitation may require the supplier to identify all limited rights data
and restricted computer software after award if identification is
impracticable before award, and to identify limited rights data and
restricted computer software relating to any changed requirements.
8.3.4.b Data Offered with Restrictions. After review of the data to be furnished with
restrictions, the purchase team may recommend to:
1. Negotiate to acquire unlimited rights or an option for unlimited rights;
2. Modify the requirement for title or unlimited rights;
3. Negotiate to acquire additional data rights necessary to accomplish the
purpose for which the data is being acquired; or
4. Reject the proposal as not in the interest of the Postal Service.
8.3.4.c Alternate Proposals
1. The Postal Service may consider an alternate proposal giving a
supplier greater rights in data if it is necessary to permit the commercial
use of the data or yield a net benefit to the Postal Service.
2. Provision 8-1, Alternate Intellectual Property Rights Proposals, may be
included in all solicitations for contracts requiring the delivery of data,
and alternate proposals must be considered as part of the evaluation
process.
8.3.5.a Basic Clauses
1. Clause 8-6, Rights in Technical Data, and Clause 8-7, Withholding
Payment (Technical Data and Computer Software), must be included in
the contract when technical data will be acquired.
2. Clause 8-16, Postal Service Title in Technical Data and Computer
Software, must be included in the contract when title to technical data
or computer software will be acquired.
3. If the data requirements are not adequately fixed and specified at the
time of contracting, Clause 8-8, Additional Data Requirements, must
also be included in the contract.
8.3.5.b Alternate Arrangements. When, in accordance with 8.3.2.f, the contracting
officer determines to acquire specific technical data items with Postal Service
rights greater than those specified in Clause 8-6, the contract must
specifically describe the applicable data items sought and Clause 8-14,
Acquisition of Additional Rights in Data, must also be included in the contract.
If an alternate data rights proposal is accepted in accordance with 8.3.4.c,
Clause 8-6 (see subparagraph a.1) must be appropriately modified by special
provision to reflect the data rights being acquired.
8.3.5.c Computer Software. When computer software is to be generated or produced
under a contract, the contracting officer must include Clause 8-9, Rights in
Computer Software, in the contract in addition to the appropriate clauses
prescribed in paragraphs a and b above.
8.3.6 Acquisition of Rights in Computer Software
8.3.6.a Covered Contracts. This part applies to contracts under which computer
software (computer programs, computer databases, and their documentation)
will be generated, developed, or modified using Postal Service funds and
those for specific acquisition of computer software developed at private
expense.
8.3.6.b Computer Software Developed at Private Expense
1. If restricted computer software will be delivered, Clause 8-9 must be
used. Unless otherwise agreed to, the restricted rights obtained by the
Postal Service are as set forth in the Restricted Rights Notice contained
in the clause. Restricted computer software may not be used or
reproduced by or disclosed outside the Postal Service, except to the
extent provided for by the contract. The restricted computer software
may be:
(a) Used or copied for use in or with the computer or computers for
which it was acquired, including use at any Postal Service
installation to which the computer or computers may be
transferred;
(b) Used or copied for use in or with a backup computer if any
computer for which it was acquired becomes inoperative;
(c) Reproduced for safekeeping (archives) or backup purposes;
(d) Modified, adapted, or combined with other computer software,
provided the modified, adapted, or combined portions of any
derivative software incorporating restricted computer software are
made subject to the same restricted rights, unless otherwise
agreed to by the parties;
(e) Disclosed to and reproduced for use by support service suppliers,
subject to the same restriction under which the Postal Service
acquired the software; and
(f) Used in accordance with b.1(a) through (e), without disclosure
prohibitions, if the computer software is published copyrighted
computer software.
2. The restricted rights set forth in subparagraph b.1 are the minimum
rights the Postal Service normally obtains in restricted computer
software and automatically apply when it is provided under the
Restricted Rights Notice of Clause 8-9. Either greater or lesser rights,
consistent with the purposes and needs for which the software is to be
procured, may be specified by the contracting officer in a particular
contract. For example, consideration should be given to any networking
needs or any requirements for use of the computer software from
remote terminals. Also, in addressing such needs, the scope of the
restricted rights may be different for the documentation accompanying
the computer software than for the programs and databases. Any
additions to, or limitations on, the restricted rights set forth in the
Restricted Rights Notice must be expressly stated in the contract or in a
collateral agreement incorporated in the contract, and the notice
modified accordingly.
3. When needed to determine whether restricted computer software must
be delivered by a supplier, Provision 8-2, Representation of Rights in
Data, may be included in any solicitation containing Clause 8-9. This
representation requests that an offeror state, to the extent feasible,
whether restricted computer software is likely to be used in meeting the
contract requirements.
8.3.6.c Marking of Computer Software. Restricted computer software delivered to the
Postal Service must contain the legend prescribed by paragraph g of Clause
8-9, if the supplier desires to protect the restricted computer software. All
markings (notices, legends, identifications) concerning restrictions on the
use, duplication, or disclosure of computer software required or authorized by
the terms of the contract under which delivery is made must be in
human-readable form that can be readily and visually perceived, and in
addition may be in machine-readable form as appropriate and feasible under
the circumstances. These markings must be affixed by the supplier to the
computer software before its delivery to the Postal Service.
8.3.6.d Clauses
1. Contracts that call for the delivery of computer software and contracts
that call for development, generation, or modification of computer
software (whether or not delivery of the computer software is required)
must include Clause 8-9 and Clause 8-7, Withholding Payment
(Technical Data and Computer Software).
2. If technical data, as well as computer software, is to be delivered,
Clause 8-6, Rights in Technical Data, must also be included in the
contract.
3. If the computer software deliverables are not fixed at the time of
contract award, Clause 8-8, Additional Data Requirements, must be
included in the contract.
8.3.7 Special Works
8.3.7.a Covered Contracts. These guidelines apply to all contracts for special works
if the Postal Service specially commissions the works and requires ownership
and control of them. Examples of such contracts may include those for (1) the
production of audiovisual works (including motion pictures and television
recordings) or the preparation of motion picture scripts, musical
compositions, sound tracks, translations, adaptations, and the like; (2)
histories of the Postal Service; (3) works pertaining to recruiting, morale,
training, or career guidance; (4) surveys of facilities; (5) works pertaining to
the instruction or guidance of Postal Service employees in the discharge of
their official duties; or (6) production of technical reports, studies, or similar
documents not otherwise covered by 8.3.2.
8.3.7.b Restrictions on Release
1. Because the release of works covered by this part by the supplier
preparing the works would prejudice the Postal Service's activities,
release must be restricted.
2. Contracts for items such as audiovisual works and sound recordings
may include limitations in connection with music licenses, talent
releases, and the like that are consistent with the purpose for which the
works are acquired.
8.3.7.c Assignment of Copyrights. The contract must enable the Postal Service to
obtain ownership of the copyright in the works described above. This is to be
accomplished by contract provisions requiring the supplier to assign
copyrights to the Postal Service in those works in which the Postal Service
would not otherwise be considered the author under section 201(b) of
Title 17, United States Code.
8.3.7.d Indemnification. Preparation of certain types of copyright works requires
talent releases and other permission from artists, models, and in some cases
other copyright owners. Therefore, an indemnification for any liability that
may be incurred by the Postal Service for any violation of proprietary rights,
including copyrights, or right of privacy or publicity, or for libelous or other
unlawful matter arising out of or contained in any production or compilation of
data, should be acquired from the supplier.
8.3.7.e Clauses. Clause 8-10, Rights in Data - Special Works, must be included in
covered contracts. When appropriate, Clause 8-7, Withholding Payment
(Technical Data and Computer Software), may also be included in the
contract.
8.3.8 Existing Works
8.3.8.a Covered Contracts. Contracts for the procurement of existing works (other
than computer programs and audiovisual works), such as books and
periodicals, generally require no specific contract coverage for data rights.
When reproduction rights are required in such works, specific contract
coverage is needed.
8.3.8.b Clause. If reproduction rights are to be obtained for existing works (other than
computer programs and audiovisual works), Clause 8-11, Rights in Data -
Existing Works, must be included in the contract.
8.3.9.a Reporting Royalties
1. Provision 8-4, Royalty Report, must be included in any solicitation that
may result in other than a firm-fixed-price contract.
2. The contracting officer must forward any information received regarding
royalties to the General Counsel.
3. The General Counsel must advise the contracting officer concerning
any royalties that are excessive or that the Postal Service is not
obligated to pay.
8.3.9.b Refunds of Royalties. When the price of a contract described in
subparagraph a.1 is based in part on a contingency for patent royalties that
may not have to be paid by the supplier, Clause 8-12, Refund of Royalties,
must be included in the contract.
8.3.10 Professional Services
Contracts for professional consultant, research, technical development or
other specialized support services may require access to Postal Service
information. The products of such contracts may not otherwise be covered by
the policies of 8.2 or 8.3, and generally have unknown long-term implications
and therefore require broad rights in intellectual property to flow to the Postal
Service. Clause 8-13, Intellectual Property Rights, must be included in such
contracts.
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