Data rights provide the legal framework between the Government and a Contractor on the usage of technical and software data, as well as Intellectual Property. There are several different types of data rights and they are based on who funded the development effort.
If data is developed exclusively at private expense – meaning the Government did not provide any of the funding – then the contractor has the rights to the data and can restrict how the Government uses it. Data developed exclusively at private expense results in limited or restricted rights. With limited rights, the Government has authority to use the data but only through a limited rights agreement. A limited rights agreement is an express agreement that needs to be negotiated and obtained before the Government can release or disclose the data outside of the Government.
Data developed exclusively with federal funding – meaning the Government provided all funding – provides the Government with unlimited rights to the data. Unlimited Rights allow the Government to use, modify, reproduce, display, release or disclose technical data in any way and by any means it sees fit. It also gives the Government the right to authorize others to use the data.
If the data is developed with mixed funding, meaning both the Government and the Contractor contributed to the development, then the rights would be negotiated as soon as practicable and the Government would have, at a minimum, Government Purpose Rights. Government Purpose Rights – or GPR – are unique to defense contractors and allow the Government to freely use, modify, reproduce, release or disclose the data within the Government. It also authorizes the Government to allow others to use the data but only for Government purposes. This means, the Government can use the data for competitive purposes, but does not allow the data to be used commercially.
It is important to analyze all data rights – at the right level/component. There are times when something can be developed with mixed and private funding. What happens when a widget is developed by a Contractor and the Government wants to use it, but they also want to develop the next iteration since technology has changed? Since the original widget was developed exclusively at private expense, the Contractor retains the rights to the data. However, because the Government has now funded the upgrade exclusively, they are entitled to unlimited rights to the whole thing. Right? No! They are only entitled to unlimited rights on the upgrade.
So, you can see how important it is to track the funding and how quickly data rights can become convoluted and confusing. And just because the Government is not entitled to any rights, does not prohibit them from negotiating different rights. Data rights for a Contractor can equate to a competitive edge. Data rights for the Government can increase competition.
Data rights are highly complex and take into account many laws, regulations and policies. It is always best to consult with a legal advisor regarding data rights.