If you are a government contractor, chances are you’ve implemented some creative solutions to get the job done. Maybe you’ve created new software programs to track and manage your performance, provide a more user-friendly interface for your employees, or streamline your network operations.
Unfortunately, many government contractors learn too late that although they created an innovative product in the performance of a federal contract, they failed to adequately protect their rights to what might wind up being valuable intellectual property (“IP”) in the future. Whether your IP was created in the performance of the contract, was a deliverable, or was merely “incidental to contract administration,” you can likely retain some rights to that IP—if you promptly assert them.
You Have All Rights in Intellectual Property “Incidental to Contract Administration.”
Perhaps you’ve created IP that makes your job easier, but wasn’t developed as an essential component of the contract you’re performing, such as organizational or management software used to perform a services contract. If the IP was created “incidental to” administration of that contract, like an interface that helped you perform the work, then it is exempt from any government restrictions, like those in FAR 52.227-14, “Rights in Data.” In such an instance, you have a clear, exclusive right to the work and would want to assert your copyright as soon as possible; you never know how valuable your newly-created IP might become going forward, and registering a copyright is the best way to ensure that your work is protected.
You Have Some Rights in Intellectual Property “First Produced in the Performance of a Contract.”
The bad news is that it’s not always this cut and dry. Many times, that million-dollar idea will have been produced for the first time in the performance of a contract. The good news, though, is that this FAR provision gives you significant rights. In other words, you won’t be out of luck simply because you created your IP while performing a government contract —as long as you know the appropriate steps for protecting your work and act quickly.
The logic here is simple: the FAR acknowledges a contractor’s right to claim copyright protection in data “first produced in the performance of [a] contract,” because the government wants to encourage the development of innovative, cost-saving solutions to address its needs. Contractors would be reluctant to devote time and resources to innovating if they knew the fruits of their labor would belong to the government. The government’s wish to provide contractors with an incentive to innovate is in FAR 52.227-14.
If the work was “first produced in the performance of [the] contract,” there are a few requirements you need to navigate in order to assert your copyright:
- Make a written request to the contracting officer for permission to assert your copyright.
- Place a copyright notice in your data or software within 6 months of delivery.
- Make sure that the Rights in Data clause is not limited by another provision in the contract.
If these requirements are satisfied, you can go ahead and register your copyright, even though the work was created in the performance of a federal contract. By registering your copyright, you can be sure that the court system will have your back in the event you need to enforce your rights.
Except against the government, of course. In return for granting your request for permission to assert your copyright protection, the government receives an irrevocable worldwide license to use, reproduce, display, or make derivative works from your IP.
While granting the government an irrevocable license might seem like a steep price to pay for simply getting its permission to copyright IP that you created with your own blood, sweat, and tears, just remember that you may still stand to benefit substantially in the commercial sector in the future. Not only that, but other federal contractors might need to license your technology to remain competitive going forward, and you’ll be glad you took the necessary steps to secure your rights.
The bottom line is that whether you create IP that falls within the FAR’s “Rights in Data” provision or not, it’s important to remain vigilant in trying to protect the rights to work you generate during the performance of federal contracts. The government may have the upper hand in many aspects of solicitation and performance, but it doesn’t necessarily have to deprive you of your IP rights.