In order to implement our data policy tenet that algorithms, including scientific source code, be included in the term data, and be shared fully and openly, the following alternate “Data Rights” clause was created by NASA to include in Cooperative Agreements and Contracts with data providers supported by NASA.
NASA’s Earth Science program was established to use the advanced technology of NASA to understand and protect our home planet by using our view from space to study the Earth system and improve prediction of Earth system change. To meet this challenge, NASA promotes the full and open sharing of all data with the research and applications communities, private industry, academia, and the general public. The greater the availability of the data, the more quickly and effectively the user communities can utilize the information to address basic Earth science questions and provide the basis for developing innovative practical applications to benefit the general public. A primary objective of this program is to facilitate the enhancement of the National Information Infrastructure to affect the emergence of an Environmental Information Economy capable of providing for the routine exchange of environmental data and information. To meet the objectives of this program, scientific data product algorithms and data products or services produced through the program shall be made available to the user community on a nondiscriminatory basis, without restriction, and at no more than the marginal cost of fulfilling user requests.
Included below is the Data Rights clause created specifically for this type of partner agreement, which will be part of the Cooperative Agreement between NASA and successful Earth Science Data System (ESDS) solicitation respondents.
2. Rights in Data Clause
The following Rights in Data clause created for NASA’s Earth Science Data Cooperative Agreements is used for this Cooperative Agreement and replaces the standard Rights in Data clause (1260.30) of the “NASA Grant and Cooperative Agreement Handbook.”
Rights in Data
(December 2006, amended January 2012)
NASA intends to protect Recipient’s rights to data that embodies trade secrets or comprises commercial or financial information which is privileged or confidential. No data transfer or “cross fertilization” of concepts will be performed by NASA participants, should two or more cooperative agreements be awarded. While NASA will require that the data that embodies trade secrets or comprises commercial or financial information which is privileged or confidential generated by the Recipient be delivered to NASA for dissemination to employees of NASA, of NASA's Jet Propulsion Laboratory (JPL), and of appropriate support contractor personnel, such data marked with a suitable notice or legend will be protected for the 2-year period of exclusivity set forth in paragraph D.3 of this clause. Support contractor personnel will be provided access to such data generated as a part of these studies only under suitable protective conditions and use by support contractor personnel will be limited to governmental purposes only.
- “Data” means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, software and documentation thereof, and data comprising commercial and financial information.
- “Computer Data Base” means a collection of Data in a form capable of being processed and operated on by a computer through the use of a computer program performing the function of storing, manipulating, or formatting. A “computer data base” is not software.
- “Metadata” means information about a Data set provided by the data supplier or the generating algorithm and which provides a description of the content, format, and utility of the Data set. Metadata provide criteria, which may be used to select Data for a particular scientific investigation.
- “Object Code” means machine language, i.e., that programming language directly readable by a computer.
- “Software” means computer programs (a set of statements or instructions, in object code, to be used directly or indirectly in a computer in order to bring about a certain result), source code, source code listings, and design details, algorithms, processes, flow charts, formulae and related material that would enable the software or a functionally equivalent software to be reproduced, recreated, or recompiled, regardless of the form or media on which such information is recorded.
- “Software Documentation” means Data that explain the capabilities of the software, or provide operating instructions for using the software, to obtain the desired results from a computer such as: (a) owner’s manuals, (b) user’s manuals, (c) installation instructions, (d) operating instructions, and other similar items.
C. Data Products
- Scientific Data: Earth system science products, with accompanying metadata and quality assessments, made available through production or services provided by the project. Some examples of Scientific Data include: geophysical parameters, such as sea surface temperature, sea surface height, atmospheric pressure/temperature levels, precipitation, atmospheric chemical species and aerosols, ice sheet mass balance, and various terrestrial surface measurements.
- Scientific Computer Data Base: Collection of Scientific Data.
- Scientific Software: Scientific software is that software used for processing raw Earth Observation remote sensing instrument Data into Scientific Data.
- Information System Software: Software produced as part of the project pursuant to the technology objectives of this Cooperative Agreement that comprises any part of, access to, or management of Data in the data system of the project, or tools that access, manipulate, or analyze Scientific Computer Data Base. Some examples of Information System Software include client/server applications, user interfaces, tools for selecting, manipulating and analyzing Scientific Data, and database management software.
D. Data Rights
- Data exchanged between NASA and Recipient under this Cooperative Agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise provided below in this clause. In particular, rights in Scientific Data, Scientific Computer Data Bases, and Scientific Software, as defined in paragraph C of this clause, are provided under this paragraph D.1.
- Background Data: (Recipient’s and NASA’s)
a. Recipient: In the event it is necessary for Recipient to furnish NASA with Data which existed prior to, or produced outside of, this Cooperative Agreement, and such Data embodies trade secrets or comprises commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence and disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA’s responsibilities under this Cooperative Agreement. Upon completion of activities under this Cooperative Agreement, such Data will be disposed of as requested by Recipient. A.27-3
b. NASA: Earth Observing System Core System (ECS) Software - No license rights to the ECS software are granted or implied by this Cooperative Agreement. ECS software is being provided for Government purposes and may not be used for commercial purposes during or upon completion of this Cooperative Agreement. Upon completion of activities under this Cooperative Agreement, such Data will be disposed of as requested by NASA. Any modification to these rights will be expressly made through a separate written agreement.
- Data first produced by Recipient:
a. In the event Data first produced by Recipient in carrying out Recipient’s responsibilities under this Cooperative Agreement is furnished to NASA, and Recipient considers such Data to embody trade secrets or comprise commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence for a period of two years after completion of this Cooperative Agreement and be disclosed and used by the Government and its contractors (under suitable protective conditions) only for use as a tool for Government research by or on behalf of the Government during that period. In order that the Government and its contractors may exercise the right to use such Data for the purposes designated above, NASA, upon request to the Recipient, shall have the right to review and request delivery of Data first produced by Recipient. Delivery shall be made within a time period specified by NASA.
b. In particular, rights in Information System Software, as defined in paragraph C of this clause, are provided under this paragraph D.3, except that object code shall be treated under paragraph D.1 of this clause as Data exchanged without restriction as to its disclosure, use or duplication.
c. Within one month of the completion of this Cooperative Agreement, the recipient shall provide written documentation of its intent to commercialize “Data first produced by Recipient” under this Cooperative Agreement. If the Recipient intends to commercialize such Data, Recipient shall mark the Data with a suitable notice and NASA shall, to the extent permitted by law, maintain such Data in confidence for a period of two years after completion of this Cooperative Agreement. During the aforementioned restricted period, NASA will disclose such Data to third parties (under suitable protective conditions) only with the Recipient’s written approval. After the restricted period expires, NASA shall have the rights specified in paragraph D.1 of this clause.
d. If the Recipient determines not to commercialize such Data (or otherwise make the data available to the user community, such as “open source”), or if the Recipient fails to provide written documentation indicating its intent to commercialize the Data, Recipient agrees that NASA shall have the rights specified in paragraph D.1 of this clause and all such Data can be made available without restriction as to its disclosure, use or duplication. Alternatively, at NASA’s option, NASA may require the recipient to assign any copyright in such Data to NASA or its designee.
- Data first produced by NASA: Data first produced by NASA in carrying out NASA’s responsibilities under this Cooperative Agreement that would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it had been obtained from the Recipient, will be marked with a suitable notice or legend and maintained in confidence for an agreed period of up to two (2) years after completion of this Cooperative Agreement, with the express understanding that during the aforesaid period such Data may be disclosed and used (under suitable protective conditions) by or on behalf of the Government for Government purposes only, and thereafter for any purpose whatsoever without restriction on disclosure and use. Recipient agrees not to disclose such Data to any third party without NASA’s written approval until the aforementioned restricted period expires.
a. In the event Data is exchanged with a notice indicating the Data are protected as a published copyrighted work, or are deposited for registration as a published work in the U.S. Copyright Office, the following paid-up licenses shall apply:(i) If it is indicated on the Data that the Data existed prior to, or was produced outside of, this Cooperative Agreement, the receiving party and others acting on its behalf, may reproduce, distribute, and prepare derivative works for the purpose of carrying out the receiving party’s responsibilities under this Cooperative Agreement; and(ii) If the furnished Data does not contain the indication of paragraph D.5.a.(i) of this clause, it will be assumed that the Data was first produced under this Cooperative Agreement, and the receiving party and others acting on its behalf, shall be granted a paid-up, nonexclusive, irrevocable, world-wide license for all such Data to reproduce, distribute copies to the public, prepare derivative works, and perform publicly and display publicly, by or on behalf of the receiving party. For Data that is computer software, the right to distribute shall be limited to potential users in the United States.b. When claim is made to copyright, the Recipient shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of Government sponsorship to the Data when and if the Data are delivered to the Government.
- Oral and Visual Information:
If information which the Recipient considers to embody trade secrets or to comprise commercial or financial information which is privileged or confidential is disclosed orally or visually to NASA, such information must be reduced to tangible, recorded form (i.e., converted into Data as defined herein), marked with a suitable notice or legend, and furnished to NASA within 10 days after such oral or visual disclosure, or NASA shall have no duty to limit or restrict, and shall not incur any liability for, any disclosure and use of such information.
- Disclaimer of Liability:
Notwithstanding the above, NASA shall not be restricted in, or incur any liability for, the disclosure and use of:
a. Data not identified with a suitable notice or legend as set in paragraphs D.2.a., D.3.a., and D.3.c. of this clause; or
b. Information contained in any Data for which disclosure and use is restricted under paragraphs D.2. or D.3. of this clause, if such information:(i) is publicly available at the time of disclosure or thereafter becomes publicly available without breach of this Cooperative Agreement;(ii) is known to, in the possession of, or developed by NASA independent of carrying out the NASA’s responsibilities under this Cooperative Agreement;(iii) is received from a third party having the right to disclose such information without restriction; or(iv) is required to be produced or released by the receiving Party pursuant to a court order or other legal requirement.
E. Marking of Data
All Data or Information System Software object code created under this Cooperative Agreement, by NASA or the Recipient shall be marked with the notice provided below.
- Copyright <enter year of first publication> <enter Participant’s name OR United States Government as represented by the Administrator of the National Aeronautics and Space Administration, as applicable>. No copyright is claimed in the United States under Title 17, U.S. Code to any U.S. Government created work. This work has been developed under Cooperative Agreement with NASA and the Government has certain rights. This work is released without restriction as to its disclosure, use or reproduction. Software shall not be disassembled, reverse engineered, or made into human readable form.
- This work is provided “as is” without any warranty of any kind, either express, implied, or statutory, including, but not limited to, any warranty that the software will conform to specifications, any implied warranties of merchantability, fitness for a particular purpose, and freedom from infringement, and any warranty that the documentation will conform to the software, or any warranty that the software will be error free.
- In no event shall NASA be liable for any damages, including, but not limited to direct, indirect, special, or consequential damages, arising out of, resulting from, or in any way connected with this work, whether or not based upon warranty, contract, tort, or otherwise, whether or not injury was sustained by persons or property or otherwise, and whether or not loss was sustained from, or arose out of the results of, or use of, the work provided hereunder.
F. Lower Tier Agreements
Recipient shall include this provision, suitably modified to identify the parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work conducted under or in association with this Cooperative Agreement.