4. Government-Wide Code Reuse
Under U.S. copyright law, all software created by Federal Government employees as a “government work” is in the public domain and, accordingly, is not subject to copyright protection in the United States.20 However, software created on behalf of the Government by third parties, such as private sector vendors, is subject to copyright protection. Currently, the majority of software solutions used in the Federal Government are developed by third parties.
As discussed earlier, the reuse of custom-developed source code purchased by the Federal Government has numerous benefits for American taxpayers. To take advantage of these benefits, all covered agencies and component organizations that procure custom-developed software solutions for the Federal Government must, at a minimum, comply with the following requirements:
Require delivery of the underlying custom source code, associated documentation, and related files—from the third-party developer or vendor to the Federal organization (including build instructions and, when applicable, software user guides, other associated documentation, and automated test suites); and
Secure unlimited rights to the custom source code, associated documentation, and related files—which includes the rights to reproduction, reuse, and distribution of the custom source code, associated documentation, and related files across the Federal Government.
Covered agencies that enter into agreements for the development of software should require unlimited data rights in accordance with this policy. Additional guidance, including sample language for agreements, shall be provided as a part of Project Open Source.21
Securing Federal Government-wide reuse rights for custom code is a critical first step in gaining efficiencies in Federal software purchasing; however, without broad and consistent dissemination of the code across the Federal Government, these efficiencies cannot be fully realized. Therefore, in addition to securing the rights discussed above, covered agencies must make custom-developed code available to all other Federal agencies.22 The “Implementation” section of this policy provides additional guidance on this requirement.
Note that although Government-wide reuse of custom-developed code shares some of the same benefits as OSS, it does not meet the definition of OSS23 and should therefore not be mislabeled as such.
Footnotes
- 20Per 17 U.S.C. §105, U.S. Government Works are not subject to domestic copyright protection.↩
- 21Additional information about Project Open Source can be found in Section 6: Implementation.↩
- 22Limited exceptions may apply. See “Exceptions” section for additional information.↩
- 23As of the publication date of this policy, the most widely-recognized definition of “Open Source Software” – both in the U.S. and internationally – is provided by the Open Source Initiative, and provides 10 criteria that software must meet to be considered open source. This definition is accessible at https://opensource.org/osd.↩