Devos, Trump Delay Implementation of Obama-Era Open Licensing Rule

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(March 29, 2017) On March 21, the Department of Education (ED) announced in the Federal Register that the effective date of the final regulations entitled “Open Licensing Requirement for Competitive Grant Programs” would be delayed until May 22, 2017. The rule was originally intended to go into effect on March 21, but as the Department explained in its announcement, the additional time is meant to provide ED with the opportunity needed for “additional consideration” of the regulation.

The final rule, which was issued on January 19 in the final hours of the Obama presidency, would have required recipients of ED competitive grants to openly license copyrightable works produced in whole or in part with those funds. As a result, most educational resources created with funds from such grants would be freely available for public use, including adaptation for new uses, incorporation into new materials, and general dissemination, that traditional copyright restrictions would otherwise limit or prohibit.

In December 2015, when the rule was originally proposed, EDUCAUSE and the American Council on Education (ACE) submitted comments to ED about concerns with the process and its outcome. While expressing strong support for the principle of openness animating the Department’s efforts, ACE and EDUCAUSE noted that the higher education research community has raised valid concerns that the draft regulation did not effectively address. EDUCAUSE and ACE offered to work with ED and relevant research groups to identify how best to resolve the problems the rule might pose for higher education research while advancing the contributions of ED competitive grants to open educational resources.

ED did incorporate into the final rule some of the suggestions for improvement based on the points highlighted by research groups, including a blanket exception to the open licensing requirement in cases where open licensing of copyrightable grant materials would conflict with intellectual property rights derived from other sources. The final rule also allows for grantees to receive individual exceptions to the open licensing requirement for special circumstances. In a subsequent letter to ED, though, higher education research associations asked ED to further revise the rule given the need for greater specificity on how the exceptions process in particular would work efficiently and effectively. More information on the final rule and EDUCAUSE’s input can be found here.

Jen Ortega serves as a consultant to EDUCAUSE on federal policy and government relations. She has worked with EDUCAUSE since 2013 and assists with monitoring legislative and regulatory proposals across a range of policy areas, including cybersecurity, data privacy, e-learning, and accessibility.