Memorandum: Final Regulations on Open Licensing Requirements under Department of Education Competitive Grant Programs

On January 13, the U.S. Department of Education (ED) released final regulations on open licensing requirements covering recipients of ED competitive grants. In short, the regulations require, subject to certain exceptions, that ED grantees awarded competitive grant funds openly license to the public copyrightable grant deliverables created with such grant funds. The regulations will shortly be published in the Federal Register and will be effective 60 days after the publication date. The final regulations revise the proposed regulations included in a Notice of Proposed Rulemaking (NPRM) issued by ED on November 3, 2015.

The purpose of this memorandum is to summarize the major provisions of the final regulations.

Background

Under existing regulations, title to intellectual property (including copyright) developed with ED competitive grant funds vests in the grantee. At the same time, ED reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish or otherwise use for Federal purposes any work subject to copyright that was developed, or for which ownership was acquired, under a grant award, and may also authorize others to do so. (This authorization, known as a “Federal purpose license,” gives ED the ability to authorize other entities to use work developed or obtained with ED competitive grant funds.)

As explained in the background section of the pending Federal Register notice, ED developed new regulations after determining that copyrightable works created under its competitive grant programs were not being accessed widely, notwithstanding the Federal purpose license and the dissemination efforts of both ED and individual grantees. According to the final notice, many education stakeholders and other members of the public are unaware of the resources created through ED competitive grant programs and, even when they are aware, these actors have been unsure how to access the resources, what usage rights or permissions are needed to access them, and how to obtain those rights or permissions.

Major Elements of the Regulations

Under the new regulations:

• A grantee or subgrantee must openly license to the public a worldwide, non-exclusive, royalty-free, perpetual and irrevocable license to: (1) access, reproduce, publicly perform, display and distribute any grant deliverable that constitutes copyrightable work and is developed wholly or in part with ED competitive grant funds; (2) prepare derivative works and reproduce, publicly perform, and publicly display those derivative works; and (3) otherwise use the copyrightable work, provided that in all such instances attribution is given to the copyright holder.

• When a grant deliverable consists of modifications to pre-existing work, the license described above must extend only to those modifications that can be separately identified and only to the extent that open licensing is permitted under the terms of any licenses or other legal restrictions on the use of the pre-existing work.
• Grantees and subgrantees may select any open licenses that comply with the regulatory requirements, including a license that limits use to noncommercial purposes, so long as they meet certain technical requirements.
• A grantee’s or subgrantee’s open license must not extend to any copyrightable work incorporated in the grant deliverable that is owned by a party other than the grantee or subgrantee, unless the grantee or subgrantee has acquired the right to provide such a license.
• The regulations apply to ED competitive grants but do not apply to:
  • Grants that provide funding for general operating expenses;
  • Grants that provide support for individuals (such as through scholarships or fellowships);
  • Grant deliverables that are jointly funded by ED and another Federal agency, if the other agency does not require open licensing under the relevant grant program;
  • Copyrightable works created by a grantee or subgrantee but not with ED grant funds;
  • Peer-reviewed scholarly publications that arise from scientific research funded fully or partially with ED grants;
  • Grantees and subgrantees under the Ready-to-Learn Television program;
  • A grantee or subgrantee that has received a specific exception from ED, for example in a situation where ED determines that a grantee’s dissemination plan would likely result in dissemination at least equal that likely to be achieved through an open license or that compliance would impede a grantee’s ability to form required partnerships under the grant; and,
  • Grantees and subgrantees for which compliance would conflict with or materially undermine the ability to protect or enforce other intellectual property rights or obligations.

Implementation of the Regulations

In the background section of the notice, ED estimates that, after application of the exceptions listed above, the regulations will apply to approximately 60 percent of its competitive grants. Further, in designing competitions that do not fall within the exceptions, ED will consider when to make an exception for a particular grant program and a particular competition. Toward that end, as explained in the background section, ED will consider whether an open licensing agreement would conflict with the statutory purpose of a program and whether the harm caused to the program by implementing the open licensing requirement would outweigh its benefit.

In making those determinations, again as spelled out in the background section, ED will consider such factors as: (1) possible negative effects on the statutory purpose of the program if an open-licensing agreement is applied; (2) possible barriers to the intended benefits of broad dissemination if an agreement is applied (for instance, if the broadest possible dissemination can be achieved only through exclusive private-entity partnerships); (3) the public need for, or benefit from, the opportunity to access or use a copyrightable grant deliverable given the context of a particular program; and (4) other economic considerations, such as an undue hardship on grantees implementing the requirements. In each Notice Inviting Applications for a competitive grant program, ED will specify whether the grants will be subject to or exempt from the regulations.

Finally, the background section of the notice explains that ED intends to take a phased approach to implementing the regulations for new competitive grants in fiscal year (FY) 2017 and then to fully implement them for all applicable programs in FY 2018. This schedule is intended to give ED the opportunity to take such steps as developing administrative procedures for considering requests for exemptions and providing relevant staff training.