U.S. Department of Education Releases Final Open Licensing Rule

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(February 8, 2017 – Jarret Cummings) At the close of the Obama Administration, the U.S. Department of Education (ED) released its final regulation on open licensing of copyrightable materials produced under its competitive grant programs. The rule requires grantees to openly license copyrightable deliverables produced in whole or in part with ED funds for use, reuse, and modification by the general public, subject to important exceptions.

When ED announced a potential rule in this space in late 2015, EDUCAUSE joined with the American Council on Education (ACE) to comment on the notice of proposed rule-making. We expressed our support for the principle of openness based on the general value that following it provides to students, faculty, institutions, and the higher education community as a whole. (For example, see the letter EDUCAUSE joined with 90 other associations and organizations that discusses the benefits of releasing federally funded educational resources as open educational resources (OER).) ACE and EDUCAUSE noted in our remarks, however, that many in the higher education research community had significant concerns about the proposed rule being overly broad. Those parties argued that the proposed rule would conflict with scholarly and institutional intellectual property (IP) rights granted under other laws and regulations, negatively impact the federal government’s goals for the commercialization of federally funded research and innovation, and compromise the quality of educational tools and assessments that rely on rigorous, sustained research and evaluation to ensure their validity. EDUCAUSE and ACE, therefore, encouraged ED to engage with higher education research organizations to ensure the final regulation would achieve its intended goals without undermining the research enterprise.

While ED didn’t take our offer to facilitate such a dialogue, it added exceptions to the rule’s application that substantially respond to research concerns. The most important provides a blanket exception in cases where open licensing of copyrightable grant materials would conflict with IP rights derived from other sources: “Further, the rule will not apply to a grantee for which compliance with the rule 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,….” (Federal Register, Vol. 82, No. 12, p. 7377.) The final regulation also allows for grantees to receive individual exceptions to the open licensing requirement, particularly in cases where other means of disseminating grant deliverables would achieve the same or greater distribution or where open licensing would inhibit partnerships relevant to achieving the grant’s goals. (Ibid.) In addition, “peer-reviewed scholarly publications that arise from any scientific research funded, either fully or partially, from grants awarded by the Department” are specifically exempted from the regulation. (Ibid.)

ED plans to begin incorporating the rule into its competitive grant programs over the course of FY 2017, with full implementation across all such programs set for FY 2018. To this point, the regulation does not seem to be among those targeted for review and repeal under the Congressional Review Act, which allows Congress to rescind new regulations issued in the waning days of a presidential administration. The Trump Administration included it in a brief list of ED regulations that would have their initial implementation dates delayed pending review by the Administration’s incoming appointees. In this case, the delay will have only a slight effect since the rule wasn’t scheduled to begin taking effect until late March. It does signal, however, that the regulation is on the Administration’s radar and could be subject to further delay or other action depending on what the incoming Trump officials decide to do.

Jarret Cummings is the Director of Policy and Government Relations for EDUCAUSE.