No. 41459 (Amendment): Rule R895-3. Computer Software Licensing, Copyright, Control, Retention, and Transfer

(Amendment)

DAR File No.: 41459
Filed: 04/07/2017 10:24:02 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to establish the State of Utah's position and its intent to: 1) comply with computer software licensing agreements and applicable federal laws, including copyright and patent laws; 2) define the methods by which the State of Utah (State) will control and protect computer software; and 3) establish the State's right, title and interest in state-developed computer software, including the sale and transfer of such software under certain conditions.

Summary of the rule or change:

The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

Statutory or constitutional authorization for this rule:

• Section 63F-1-206
• Section 34-39-1 et seq.
• Section 63G-2-101 et seq.
• Section 63G-3-201

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget. The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

local governments:

There is no anticipated cost or savings to local government. The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

small businesses:

There is no anticipated cost or savings to small businesses. The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

persons other than small businesses, businesses, or local governmental entities:

There is no anticipated cost or savings to other persons. The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

Compliance costs for affected persons:

There is no anticipated compliance costs for affected persons. The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no anticipated fiscal impact to businesses. The proposed changes to the rule eliminate duplication and revise processes in Sections R895-3-5 and R895-3-6.

Michael Hussey, CIO

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Technology Services
Administration
Room 6000 STATE OFFICE BUILDING
450 N STATE ST
SALT LAKE CITY, UT 84114

Direct questions regarding this rule to:

• Stephanie Weteling at the above address, by phone at 801-538-3284, by FAX at 801-538-3622, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/31/2017

This rule may become effective on:

06/08/2017

Authorized by:

Michael Hussey, Executive Director and CIO

RULE TEXT

R895. Technology Services, Administration.

R895-3. Computer Software Licensing, Copyright, Control, Retention, and Transfer.

R895-3-1. Purpose.

The purpose of this rule is to establish the State of Utah's position and its intent to:

(1) comply with computer software licensing agreements and applicable federal laws, including copyright and patent laws;

(2) define the methods by which the State of Utah (State) will control and protect computer software; and

(3) establish the State's right, title and interest in state-developed computer software, including the sale and transfer of such software under certain conditions.

 

R895-3-2. Application.

All state agencies of the executive branch of the State government shall comply with this rule, which applies to the use, acquisition and transfer of all computer software, regardless of the operating environment or source of the software.

 

R895-3-3. Authority.

This rule is issued by the Chief Information Officer under the authority of Section 63F-1-206 of the Technology Governance Act, and in accordance with Section 63G-3-201 of the Utah Rulemaking Act, Utah Code Annotated.

 

R895-3-4. Definitions.

As used in this rule:

(1) "Audit" means to review compliance with laws, rules and policies that apply to computer software and related documentation; and to report findings and conclusions.

(2) "Commercial computer software" means computer software that is sold, licensed, or leased in significant quantities to the general public at established market or catalog prices.

(3) "Computer program" means a set of statements or instructions used in an information processing system to provide storage, retrieval, and manipulation of data from the computer system and any associated documentation and source material that explain how to operate the program.

(4) "Computer software" means sets of instructions or programs structured in a manner designed to cause a computer to carry out a desired result.

(5) "Spot Audit" means a periodic audit described in (1) and conducted by a person or persons performing the State Software Controller function.

(6) "State agency" means any agency or administrative sub-unit of the executive branch of the State government except:

(a) the State Board of Education; and

(b) the Board of Regents and institutions of higher education.

(7) "State-developed computer software" means computer software and related documentation developed under contract with the State or by State employees under the conditions set forth in the Employment Inventions Act, Section 34-39-1 et seq., Utah Code Annotated.

 

R895-3-5. Compliance and Responsibilities: Software Licensing.

(1) Each state agency and its employees shall comply with computer software licensing agreements, state laws, federal contracts, federal funding agreements, and federal laws, including copyright and patent laws.

(2) All management personnel will discourage software piracy and take appropriate personnel action up to and including dismissal, against any employee who has been found to be in violation of software license agreements. Personnel action shall be in full accordance with the Department of Human Resource Management Rule R477-11-1 et seq., Utah Administrative Code.

(3) Each state agency shall:

(a) establish a software coordinating function that will work with the DTS software coordinator to provide responsibility and authority to manage software licenses, software licensing agreements, software inventory;

(b) Inform employees that are engaged in developing or controlling the distribution of software for the State, that any state-developed software is an asset owned by the State and controlled according to the terms of this rule.

(4) A state software controller function is established within the Department of Technology Services with the following responsibilities:

(a) coordinate all centralized software purchases;

(b) manage software licenses, software licensing agreements and software inventory for centralized software purchases;

(c) coordinate and provide information to employees who are responsible for the software controller function within each state agency;

(d) provide to employees notices of the state agency's software use policy at appropriate locations. Appropriate locations may include computing facilities, offices, lunchrooms or websites.

(e) keep and maintain an inventory of all state-owned computer software and software licensing agreements tracked by agency by:

(i) establishing accurate software inventories and maintaining them;

(ii) establishing a baseline inventory of software already purchased;

(iii) [maintaining this inventory through annual inventory reviews that reconcile purchases against inventory;

(iv) ]acquiring and using auditing tools to assist in establishing the inventory baseline and performing the ongoing reconciliation;

(f) coordinate with DTS technical personnel to:

(i) dispose of software in accordance with the software license agreement;

[(ii) remove from the storage media before disposing of a computer, all private, protected or controlled data as defined by the Government Records Access and Management Act, UCA 63G-2-101 et seq.]

(g) Understand the conditions of computer software licensing agreements before purchasing computer software, and inform State employees, whose responsibility it is to monitor the State's compliance with computer software licensing agreements, of these conditions.

(h) coordinate statewide audits or spot audits as needed.

 

R895-3-6. Compliance and Responsibilities: Retention and Transfer of State-Developed Computer Software.

(1) Unless otherwise prohibited by federal law, regulation, contract or funding agreement, the State of Utah may retain the right, title and interest in any state-developed computer software. To do so, the agency shall:

(a) clearly define in all contracts that it controls the ownership rights for computer software development and related documentation; and

(b) mark all computer software and related documentation developed by employees of the State with the copyright symbol and year, and label "Utah State Government" on all media on which the computer software or documentation is stored and at the beginning of the computer software execution.

(2) The State of Utah may sell or otherwise transfer the right, title and interest in any state-developed computer software. In order to carry this out, state agency must do the following:

(a) [Submit a request to the state software controller and o]Obtain approval from the Chief Information Officer prior to the sale or transfer of state-developed computer software. The agency's request shall include a copy of the transfer agreement and any other contractual information. [A summary report of these requests will be provided to the Information Technology Policy and Strategy Committee. An example of a model]The required form to complete a transfer or sale of state-developed software agreement may be obtained from the [Chief Information Officer]department.

(b) Clearly specify within the transfer documents whether the costs of development will be recovered from the receiver.

(c) Clearly specify within the transfer documents whether the costs associated with copying and sending the state-developed computer software will be recovered from the receiver.

(d) Clearly specify within the transfer documents that the receiver is responsible for acquiring any commercial computer software upon which the state-developed computer software may be dependent.

(e) Clearly specify within the transfer documents that no additional services, such as installation, training, or maintenance, will be provided unless the parties have agreed otherwise.

(f) Clearly specify within the transfer documents that the state-developed computer software is being transferred in "as is" condition, and that the State will not be held liable for any incidental or consequential damages under any circumstances.

(g) Retain a record of the transfer, and process it in accordance with the Government Records Access and Management Act, Section 63G-2-101 et seq., Utah Code Annotated.

(3) In accordance with the requirements of (2), the state may initiate an agreement to transfer state-developed computer software when reasons exist to share such software with another state or entity.

(4) The Chief Information Officer may measure compliance of a state agency and its employees with this rule by conducting periodic audits in accordance with Section 63F-1-206, Utah Code Annotated. In performing audits, the Chief Information Officer may utilize external auditors and an agency's internal auditor(s) when such resources are available and the use of such resources is appropriate.

 

KEY: computer software, licensing, copyright, transfer

Date of Enactment or Last Substantive Amendment: [October 22, 2012]2017

Notice of Continuation: August 31, 2012

Authorizing, and Implemented or Interpreted Law: 63F-1-206; 63G-3-201; 34-39-1 et seq.; 63G-2-101 et seq.

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