This document from the Council on Governmental Relations (COGR) offers an in-depth analysis of the regulatory landscape surrounding rights in technical data and computer software developed under federal awards, with particular focus on research conducted at academic institutions. Unlike inventions governed by the Bayh-Dole Act, where an overarching legal framework clarifies rights stemming from federally funded research, there is no analogous comprehensive statute for technical data and software. Instead, rights and responsibilities are dictated by a complex web of federal regulations, including the Federal Acquisition Regulation (FAR), Defence Federal Acquisition Regulation Supplement (DFARS), and various agency-specific rules, each employing distinct definitions and approaches.
The document draws attention to the generally broader government rights in technical data and software under federal research contracts compared to the more limited licenses for patents under Bayh-Dole. Under most contracts—particularly those with agencies such as the Department of Defense, Department of Energy, and NASA—the government may secure substantial rights to use, reproduce, and distribute technical data and computer software, while grant mechanisms more typically allow universities and non-profits to retain ownership, subject to a government license for public purposes. Provisions for marking and protecting proprietary data are emphasized as essential, since failure to comply can jeopardize institutional rights and lead to wider government access.
Special attention is given to the inconsistencies in how federal agencies define and treat “data,” “technical data,” and “computer software,” and to the variation between procurement contracts and assistance awards (grants and cooperative agreements). Moreover, the document cautions that software may be subject to both copyright and patent regimes, but is often treated simply as technical data in contracts, leading to legal ambiguities. The document also reviews agency policies, legislative provisions such as the Shelby and Emerson Amendments that affect public access to research data, and recent trends toward greater uniformity in federal research terms.
Throughout, the document underscores the vital importance for university administrators, technology transfer staff, and researchers to understand the nuances in federal requirements, review agreement terms closely, and properly identify and protect institutional and third-party interests—particularly to support effective research dissemination, compliance, and future commercialization.
