The document from the Council on Governmental Relations presents a comprehensive analysis of the policies, regulations, and institutional responsibilities concerning rights in technical data and computer software arising from federally funded research in the United States. Unlike the standardized framework established under the Bayh-Dole Act for inventions, the management of rights in data and software lacks a single, uniform statute; instead, it is governed by a complex array of rules detailed in the Federal Acquisition Regulation (FAR), its supplements such as the Defense FAR Supplement (DFARS), and various agency-specific policies, including those of the Department of Energy (DOE), NASA, and the NIH.
A central theme of the document is the significant distinction between the treatment of technical data and software under federal contracts versus federal grants and cooperative agreements. Under most research contracts, the federal government is typically granted broad or unlimited rights to data and software generated, especially where government funding predominates. In contrast, under assistance mechanisms (such as grants), recipients generally retain ownership of the data, but the government secures a royalty-free, nonexclusive license for federal purposes. The document details the nuanced approaches taken by different agencies, the different definitions of "data" and "technical data," and the allocation of rights depending on whether materials are commercial or noncommercial in nature.
The guide also addresses key requirements for properly marking and protecting proprietary data, especially under DFARS regulations, to prevent the inadvertent conveyance of unlimited rights to the government. It reviews major policy amendments and evolving agency expectations regarding data sharing, publication, and compliance with specific federal requirements—highlighting, for example, the unique roles of NIH, NSF, DOE, and other major funding bodies.
Throughout, the document calls attention to the critical need for institutions and research administrators to actively educate themselves, carefully review contract and award terms, assert intellectual property rights where possible, and negotiate specific provisions to protect academic interests, fundamental research freedoms, and commercialization opportunities. Ultimately, it underscores that given the non-uniform, evolving nature of federal rules for data and software, vigilance and informed negotiation are essential to effectively managing rights and fulfilling institutional obligations under federal awards.
