Data-rights reform needed

As Bush administration officials settle down to business, procurement policy is likely to be among the first subjects they address, given the huge amounts of money government spends on goods and services. Undoubtedly, the administration will want to study existing policies at length before making changes.

But some changes could be made immediately. That includes a policy statement on software data rights. A contractor's rights in software developed under a government contract are a function of both general U.S. copyright law and the Federal Acquisition Regulation. Until a few years ago, the copyright law and the FAR were relatively harmonious and easy to apply. However, recent changes in the copyright law have created troublesome ambiguities.

When software is developed under a government contract, the standard FAR data-rights clause requires the developer to obtain the government's consent before filing a claim with the copyright office. Until recently, the law required the creator of a copyrightable work to file an application with the U.S. Copyright Office to secure a copyright in that work. The FAR simply required the contractor to secure the government's permission before filing the application.

But in 1996, the law was substantially changed as a result of the U.S. government joining the international Berne Convention on copyrights. Now, copyright protection extends automatically to every original work from the point it is created. Creators of copyrightable works no longer have to file claims with the copyright office to protect their interest in the works.

Even after the 1996 revision, there remain some benefits to filing a copyright notice. For example, holders of registered copyrights may claim reimbursement of their own attorneys' fees, plus certain statutory damages, as part of a copyright infringement case.

Changing the copyright laws represented a major advance in protecting the interests of creators of original works. Oddly, however, the government's own FAR Council, which is responsible for keeping the FAR current, never amended the standard FAR data-rights clause, causing needless confusion.

The revised laws indicate that the creator of a software program automatically obtains a copyright in that software. Yet the FAR data-rights clause still indicates that government consent is required before a contractor may establish a claim to copyright. As a result, for cases in which government consent to assert a copyright is not requested or is not provided quickly, the status of the work may be unclear.

Fixing this ambiguity would be a key step toward much-needed comprehensive reform in the data-rights arena. So would reconciling the FAR with the quite different Defense Department FAR Supplement, which is not a supplement at all but actually a more mature and comprehensive set of rules than those found in the FAR.

Simply replacing the FAR data-rights rules with DOD's version would be a vast improvement over existing law.

Peckinpaugh is corporate counsel for DynCorp, Reston, Va.

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