B.  Revised Licensing and New Requirements for Owners of Proprietary Information

Section 821 creates a new exception to the statutory authorization for a private party to restrict the Government's ability to release or disclose privately-developed technical data outside the Government. See 10 U.S.C. 2320(c)(2). The Government is now authorized to release privately-developed technical data to any support contractors that meet the criteria for a "covered Government support contractor," provided that the covered Government support contractor's access and use of the data is for the "sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of the program or effort to which such technical data relates." 10 U.S.C. 2320(c)(2).

This interim rule incorporates the new exception into the definition of "limited rights" and adds a new definition for "covered Government support contractor" into the following primary rights-allocation clauses: 252.227-7013 (noncommercial technical data), 252.227-7014 (noncommercial software and software documentation), 252.227-7015 (commercial technical data), and 252.227-7018 (Small Business Innovation Research (SBIR)).

The exception is inserted into the "limited rights" definition by adding "covered Government support contractors" to the existing lists of statutory exceptions to the prohibition against releasing limited rights data outside the Government. See 252.227-7013(a)(14) (formerly (13)); 252.227-7015(b)(2)(ii), which does not use the term "limited rights" but implements the same underlying statutory requirements; and 252.227-7018(a)(15) (formerly (14)). The revisions to 252.227-7013 and -7018 also required some minor restructuring of the listings of statutory exceptions.

The new definition for "covered Government support contractor" is inserted into the cited clauses as new 252.227-7013(a)(5), 252.227-7014(a)(6), 252.227-7015(a)(2), and 252.227-7018(a)(6). In each case, the insertion of a new definition requires the renumbering of all subsequent definitions in the affected clauses. The term is defined using, nearly verbatim, the new statutory definition at 2320(f)--with one key modification: Rather than reproducing all of the required non-disclosure restrictions in the definition, the definition cross-references the implementation of those same restrictions at revised 252.227-7025.

In addition, the clauses are revised to incorporate specific additional requirements that are important to support and enable the implementation of the new exception. In particular, the new statutory exception establishes the basic requirement that the covered Government support contractor must execute a contract with the Government, in which the covered Government support contractor agrees and acknowledges that it "will" enter into a non-disclosure agreement directly with the owner of the proprietary data, and thus the clause must also implement this direct non-disclosure agreement requirement within the rights and obligations of the owner of the data. Since this direct non-disclosure agreement requirement is created with the intent of protecting the proprietary rights of the data owner, DoD has implemented this by providing the data owner the sole discretion to require such a direct non-disclosure agreement or waive the non-disclosure agreement requirement in writing in each individual case. The protection offered by the new direct non-disclosure agreement requirement should not be implemented in a manner that it becomes an unwanted and unnecessary burden on the party it is intended to protect. Thus, the data owner may determine that executing a direct non-disclosure agreement with every covered Government support contractor, in every individual case, is unnecessary; provided such determinations are made in view of the multi-layered protection scheme to ensure that the data owner's rights are protected regardless of whether the parties execute a direct non-disclosure agreement, including the data owner already having a direct legal remedy against the covered Government support contractor for any unauthorized use or release pursuant to 252.227-7025(c)(2).

Accordingly, the data owner is notified of its rights and obligations regarding covered Government support contractors in proposed new coverage at 252.227-7013(b)(3)(iv), 252.227-7015(b)(3), and 252.227-7018(b)(8). In each case, the new coverage acknowledges the newly authorized release to covered Government support contractors; confirms that the data owner will be notified of such release; provides the data owner the discretion to require the covered Government support contractor to execute a direct non-disclosure agreement; and acknowledges that the data owner and covered Government support contractor may include additional terms and conditions in such a non-disclosure agreement by mutual agreement, as long as the basic statutory requirements for the non-disclosure agreement are also addressed (these basic statutory requirements are provided at 252.227-7025).

In addition, these same requirements are also appropriate for adaptation to the corresponding DFARS coverage for noncommercial technical data. Thus, equivalent revisions are incorporated in 252.227-7014, including a new definition of "covered Government support contractor" at paragraph (a)(6), a revised definition of "restricted rights" (the computer software equivalent of limited rights for technical data) at (a)(15) (formerly (14)), and the supporting rights and procedures at new (b)(3)(iii). Because there is no current DFARS coverage for this subject matter in the context of commercial computer software, no revisions are made to 227.7202.