Policy & Advocacy

Department of Education Open Licensing Rule

Open Education

Summary

The U.S. Department of Education has adopted an open licensing policy for grant-funded educational resources. The policy requires by default that recipients of competitive grants apply an open license and have a plan to publicly disseminate educational resources and other works created with grant funds. The final rule enacting this policy took effect on May 22, 2017 (following a delay) and will be fully implemented for applicable competitive grant programs beginning in FY 2018.

Background

Each year the Department of Education funds billions of dollars of competitive grant awards, including projects that produce valuable educational resources — from assessments to training materials to adaptive software. Although these resources are created with taxpayer dollars, they are often not available for the public to access and use.

Existing policy about grant-funded resources was made for the analog world, where dissemination required printing and shipping, and editing required scissors and glue. Open licensing policies reflect the digital, connected world we live in, by giving the public the right to fully use the valuable resources our taxpayer dollars are used to create. Wider availability of openly licensed educational resources empowers students, teachers, schools, entrepreneurs, parents and more to expand educational opportunities, improve workforce training, reduce the cost of education, and build new businesses.

Open licensing policies have become increasingly common throughout the Federal government. The Department of Labor adopted an agency-wide open licensing policy in late 2015, building on successful program-level policies including the $2 billion TAACCCT fund. The Department of State requires open licensing on several of its overseas grant programs, and led the development of an open licensing playbook. The Department of Education’s First in the World program has had an open licensing requirement since 2014.

The Department of Education open licensing rule takes a meaningful step toward ensuring more publicly funded educational resources are openly licensed and shared with the public.

 About the Rule

  • Applies to Department of Education discretionary competitive grant programs ($4.2 billion in FY 2016).
  • Requires grantees to openly license, and have a plan to publicly disseminate, copyrightable works created in whole or in part with grant funds.
  • Permits grantees to select which open license to use, but lays out clear terms that the license must meet. Grantees may select a license that limits use to non-commercial purposes.

“…must grant to the public a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable license to (i) access, reproduce, publicly perform, publicly display, and distribute the copyrightable work; (ii) prepare derivative works and reproduce, publicly perform, publicly display and distribute those derivative works; and (iii) otherwise use the copyrightable work, provided that in all such instances attribution is given to the copyright holder.”

  • Includes certain categorical exemptions, including peer-reviewed scholarly publications (which are covered by the Department of Education’s public access policy), works jointly funded by other Federal agencies, and the Ready-to-Learn Television program.
  • Effective as of May 22, 2017, and will be fully implemented for applicable competitive grants in FY 2018 (which begins October 1, 2017). The rule was originally scheduled to go into effect on March 20, 2017, but was delayed twice before ultimately taking effect.

Final Rule Language

Below is the text of the final rule, as published in the Federal Register on January 19, 2017. Its citation in the Code of Federal Regulations is 2 CFR § 3474.20.

2 CFR § 3474.20

Open licensing requirement for competitive grant programs.

For competitive grants awarded in competitions announced after February 21, 2017:

(a) A grantee or subgrantee must openly license to the public the rights set out in paragraph (b)(1) of this section in any grant deliverable that is created wholly or in part with Department competitive grant funds, and that constitutes a new copyrightable work; provided, however, that when the deliverable consists of modifications to pre-existing works, the license shall 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 pre-existing works.

(b)(1) With respect to copyrightable work identified in paragraph (a) of this section, the grantee or subgrantee must grant to the public a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable license to—

(i) Access, reproduce, publicly perform, publicly display, and distribute the copyrightable work;

(ii) Prepare derivative works and reproduce, publicly perform, publicly display and distribute those derivative works; and

(iii) Otherwise use the copyrightable work, provided that in all such instances attribution is given to the copyright holder.

(2) Grantees and subgrantees may select any open licenses that comply with the requirements of this section, including, at the grantee’s or subgrantee’s discretion, a license that limits use to noncommercial purposes. The open license also must contain—

(i) A symbol or device that readily communicates to users the permissions granted concerning the use of the copyrightable work;

(ii) Machine-readable code for digital resources;

(iii) Readily accessed legal terms; and

(iv) The statement of attribution and disclaimer specified in 34 CFR 75.620(b).

(c) A grantee or subgrantee that is awarded competitive grant funds must have a plan to disseminate the openly licensed copyrightable works identified in paragraph (a) of this section.

(d)(1) The requirements of paragraphs (a), (b), and (c) of this section do not apply to—

(i) Grants that provide funding for general operating expenses;

(ii) Grants that provide support to individuals (e.g., scholarships, fellowships);

(iii) Grant deliverables that are jointly funded by the Department and another Federal agency if the other Federal agency does not require the open licensing of its grant deliverables for the relevant grant program;

(iv) Copyrightable works created by the grantee or subgrantee that are not created with Department grant funds;

(v) Peer-reviewed scholarly publications that arise from any scientific research funded, either fully or partially, from grants awarded by the Department;

(vi) Grantees or subgrantees under the Ready To Learn Television Program, as defined in the Elementary and Secondary Education Act of 1965, as amended, Title II, Subpart 3, Sec. 2431, 20 U.S.C. 6775;

(vii) A grantee or subgrantee that has received an exception from the Secretary under 2 CFR 3474.5 and 2 CFR 200.102 (e.g., where the Secretary has determined that the grantee’s dissemination plan would likely achieve meaningful dissemination equivalent to or greater than the dissemination likely to be achieved through compliance with paragraph (a) or (b) of this section, or compliance with paragraph (a) or (b) of this section would impede the grantee’s ability to form the required partnerships necessary to carry out the purpose of the grant); and

(viii) Grantees or subgrantees for which compliance with these requirements would conflict with, or materially undermine the ability to protect or enforce, other intellectual property rights or obligations of the grantee or subgrantee, in existence or under development, including those provided under 15 U.S.C. 1051, et seq.,18 U.S.C. 1831-1839, and 35 U.S.C. 200, et seq.

(2) The requirements of paragraphs (a), (b), and (c) of this section do not alter any applicable rights in the grant deliverable available under 17 U.S.C. 106A, 203 or 1202, 15 U.S.C. 1051, et seq., or State law.

(e) The license set out in paragraph (b)(1) of this section shall 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 in that work.

(f) Definition. For purposes of this section,

(1) A grant deliverable is a final version of a work, including any final version of program support materials necessary to the use of the deliverable, developed to carry out the purpose of the grant, as specified in the grant announcement.

(2) A derivative work means a derivative work as defined in the Copyright Act, 17 U.S.C. 101.

SPARC Public Comments

SPARC played a leading role in advocating for the rule in close coordination with our coalition partners. Below are links to the public documents we submitted during the rulemaking process. We also want to thank the more than 30 academic libraries and individual librarians from the SPARC community who also voiced their support.

 

December 2015 Public Comment Period

April 2017 Public Comment Period

 

 

 

 

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