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Introduction:

The purpose of this document is to provide answers to the most frequent questions we have received from applicants thus far. Our intent is to update this document to continue to clarify questions we may receive from Fiscal Year (FY) 2020 applicants and grantees. This guidance is not intended to create new requirements but to clarify issues that arise from the implementation of the rule published on January 17, 2017. The text can be found at 2 C.F.R. §3474.20 and online, click here.

If you are responding to a notice inviting application (NIA) for an open grant competition and have any questions about this guidance or about an aspect of the open licensing requirement that is not addressed in this guidance, please submit your questions to the contact listed in the NIA with a copy to tech@ed.gov. Please also feel free to provide comments or other input on this guidance to tech@ed.gov.

UNDERSTANDING THE OPEN LICENSING REQUIREMENT AKA "OPEN RULE"

 

  1. What is the open licensing requirement for competitive grant programs, aka "open rule"?
  2. Does the open rule apply to all copyrightable works?
  3. How does the open rule apply to previously licensed materials?
  4. How does the open rule apply to modifications on existing materials?
  5. How does the open rule apply when a work is built using a copyrighted or patented product?
  6. What are the exceptions to the open rule?
  7. What are examples of final grant deliverables that are covered by the open rule?
  8. What is the requirement to disseminate final grant deliverables and program support materials?
  9. What if the grant program does not require copyrightable materials to be created? What if my project proposal does not involve creation of copyrightable materials?

UNDERSTANDING OPEN LICENSING

  1. What is a license to a work, and what is an open license?
  2. How do open licenses relate to open source software?
  3. What are examples of open licenses that satisfy the requirements of the open rule?
  4. Does an open license mean that we must allow the public to access the final grant deliverables at no cost?

UNDERSTANDING THE OPEN LICENSING REQUIREMENT AKA "OPEN RULE"

1. What is the open licensing requirement for competitive grant programs, aka “open rule”?
Beginning with FY 2018 grant competitions, in accordance with the “open rule” published in early 2017, the Department is generally requiring that for competitive grants, grantees and subgrantees must openly license grant deliverables created wholly or in part with Department grant funds. This requirement will apply to new copyrightable works and any new modifications to pre-existing works that are separately identifiable and developed during the grant implementation.

Under this open rule, all new NIAs for discretionary grant programs will clearly indicate whether that program is subject to the requirements of the open rule or whether it has been granted an exception. The unusual circumstances needed to justify exceptions for individual grantees and grant deliverables are also described in the open rule (more guidance on this may be developed in the future).

2. Does the open rule apply to all copyrightable works?
Unless an exception applies to the grant program, the open rule applies to all final grant deliverables created wholly or in part with Department funds, including any program support materials.

Final grant deliverables are final versions of a work developed to carry out the purposes of the grant. Each year, the Department funds a variety of grant programs that support a diverse array of grant-funded works. These have included instructional materials, personalized learning delivery systems, assessment systems, language tools, and teacher professional development training modules, just to name a few.

Program support materials are materials that are necessary to understand, learn from, use, and replicate the final grant deliverables. For example, some support materials may document best practices in implementation of certain tools for specific target populations. Since the best practices would be considered a key element to the appropriate use of final grant deliverables, they would be covered by the requirement that they be openly licensed and made available to the public.

Materials, such as staff training guides, production guides, or planning documents that are created as a result of implementing the grant project, may or may not provide useful information for understanding the administration of grant activities. In these cases, the Department is committed to working with grantees to determine whether these should be openly licensed. Other copyrightable works, such as email correspondence, administrative documentation, or deliberative work products that are produced through a grant project, will generally not be considered program support materials necessary to the use of the deliverables and therefore would not need to be openly licensed. The open rule only applies to copyrightable works and does not apply to the creation of “trade secrets” or “patentable inventions” with Department funds.

3. How does the open rule apply to previously licensed materials?
The open rule does not apply to any pre-existing intellectual property. This includes existing copyrightable works or any copyrightable works purchased by grantees or created by grantees without any funds from the Department.

4. How does the open rule apply to modifications on existing materials?
The rule applies only to modifications that are separately identifiable from the existing materials and does not apply to existing materials themselves.

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5. How does the open rule apply when a work is built using a copyrighted or patented product?
The open rule does not apply to the tools used to create a final grant deliverable, only to the deliverable itself.

6. What are the exceptions to the open rule?,
There are some specific exceptions to the open rule:

  1. Program Exceptions
    1. Grant programs that provide funding for general operating expenses
    2. Grant programs that provide support to individuals (e.g., scholarships, fellowships)
    3. Grants awarded through the Ready to Learn Television Program, which already has a well-established system of disseminating the products of the grants
  2. Materials/Resources
    1. Peer-reviewed scholarly publications that arise from any scientific research funded, either fully or partially, from grants awarded by the Department
    2. Final 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 final grant deliverables for the relevant grant program
    3. Works created by the grantee or subgrantee not using Department grant funds, including matching funds, unless an exception is made
  3. Individual Exceptions
    1. The Secretary has determined that unusual circumstances exist that warrant the grantee (or subgrantee) to receive an exception
    2. The Department has determined that compliance would conflict with other intellectual property rights of the grantees (or subgrantees)

If one of these program exceptions applies to a grant program, it will be clearly stated in the NIA. Exceptions for specific deliverables or for individual grantees can be considered after a grant is awarded. These case-by-case decisions will be made during the period of grant performance, as deliverables are developed and there is more information about the deliverable, such as the nature of the content, funding sources, and specific areas of conflict.

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7. What are examples of final grant deliverables that are covered by the open rule?
Some grantees have already begun to openly license the resources they have created. For example:

  • Massachusetts Institute of Technology (MIT) is creating scalable, differentiated instruction using technology-enabled competency-based dynamic scaffolding through the Department’s First in the World Grant Program. The modular curriculum mapping technology for creating competency-based mappings to content and student skills and outcomes, student and instructor applications, and results of implementation studies are available to the public at: http://fbw.mit.edu/technology.
  • Grants by the Department’s Office of Special Education Programs (OSEP) aim to create resources that support children, youth, and adults with disabilities. Through these grants, Benetech, a nonprofit corporation operates the DIAGRAM+ Center to provide image and math accessibility for students with print disabilities, such as blindness and dyslexia, autism spectrum disorders, hearing impairments, intellectual disabilities, and other disabilities, as well as students with any disabilities who are also English language learners. Benetech has voluntarily provided these resources under a Creative Commons license so that all schools, community organizations, technology developers, and students may freely use, adapt, and widely redistribute the assistive technologies, resources, and training materials. For more information, visit: http://diagramcenter.org/
  • The National Language Resource Centers (LRC) program funds institutions of higher education to research and develop resources for Less Commonly Taught Languages (LCTL). Though there was no requirement for the grantees to openly license their resources, the University of Texas at Austin elected to openly license the Center for Open Educational Resources and Language Learning (COERLL), which creates fully openly licensed language and pedagogical materials for 16 languages, in addition to an open platform for discovery, remix, and repurposing of these language resources and open research found at https://www.coerll.utexas.edu/​coerll/.

8. What is the requirement to disseminate final grant deliverables and program support materials?
Under the open rule, grantees will be required to develop a plan to disseminate the final grant deliverables and any program support materials. The Department does not prescribe the format of the dissemination plan in order to allow grantees flexibility to develop a plan that is appropriate for the particular types of deliverables and support materials and for the individual timeline for implementation of grant activities. Dissemination plans can be developed throughout the course of the grant period in consultation with the Department project officer, as appropriate to the workplan of the grant and when deliverables will be finalized. We encourage grantees to discuss the development of their dissemination plans as early as possible with their project officers.

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9. What if the grant program does not require copyrightable materials to be created? What if my project proposal does not involve creation of copyrightable materials?
Each year, the Department funds a variety of grant programs. Although many of these result in copyrightable works that would be considered grant deliverables, many grantees do not produce grant materials. In cases where grant deliverables are not required by the grant program or if they are not proposed to be produced by grantees in the execution of their grant projects, the open rule would not apply. If consultation with program officers shows that a grantee will not be developing a deliverable covered by the open rule, the grantee would not need to take further action.

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UNDERSTANDING OPEN LICENSING

10. What is a license to a work, and what is an open license?
Generally, a license is a legal document that specifies what can and cannot be done with a copyrightable work (such as audio, text, an image, or multimedia). It grants the user of the copyrightable work permissions and states any restrictions on use.

Broadly speaking, an open license grants permission to access, re-use, and redistribute a work with few or no restrictions. Some examples of the conditions that must be met in order for a license to be open are available in the Open Knowledge Definition 2.1, but others may apply.

11. How do open licenses relate to open source software?
An open source software license is a type of open license specific to computer software and other products that allows source code, blueprints, or design to be used, modified, and/or shared under defined terms and conditions. Generally, to be considered an open source license, the license on the software or other product must be approved by the Open Software Initiative based on its Open Source Definition that allows free use, modification, and sharing.

Examples of open source licenses that can be used to meet the requirements of the open rule include GNU General Public License (GNU-GPL), Apache, Mozilla Public License (MPL), MIT, or those that otherwise follow principles established by the Open Source Initiative. Grantees may use any open source license that meets the requirements listed immediately below.

12.What are examples of open licenses that satisfy the requirements of the open rule?
In order to satisfy the requirements of the open rule, the open license must be worldwide, non-exclusive, royalty-free, perpetual, and irrevocable. In addition, the open license must permit the public to:

  • Access, reproduce, publicly perform, publicly display, and distribute the copyrightable work;
  • Prepare derivative works and reproduce, publicly perform, publicly display, and distribute those derivative works; and
  • Otherwise use the copyrightable work, provided that in all such instances attribution is given to the copyright holder.

The open license must also contain:

  • A symbol or device that readily communicates to users the permissions granted concerning the use of the copyrightable work;
  • Machine-readable code for digital resources;
  • Readily accessed legal terms; and
  • The statement of attribution and disclaimer specified in 34 CFR 75.620(b).

Depending on the final grant deliverables, licenses that meet these requirements could include, but may not be limited to, the following:

Intended Use

Open License Examples

Free and Open Source Software

GNU General Public License (GNU-GPL), Apache, Mozilla Public License (MPL), MIT

Open Data

ODbL, CC0

Open Access

CC BY

Open Content

CC BY

During the period of the grant, if grantees have additional questions about selecting licenses, they should contact their project officers directly.

13. Does an open license mean that we must allow the public to access the final grant deliverables at no cost?
Yes, the open rule requires the selection of any license that will allow the public to use the final grant deliverables as described above in a royalty-free manner, i.e., at no cost. In addition, the license to the final grant deliverable is required to be perpetual and irrevocable

Open licenses that are royalty-free, perpetual, and irrevocable allow the public to continuously access the licensed final version of the final grant deliverable for no cost. However, grantees may elect to charge for access to services or derivative versions of the final grant deliverable at any time during or after the grant period.

DEFINITIONS

Copyrightable work – Copyrightable works are those original works of authorship that are fixed in tangible form of expression, as defined in the Copyright Act, 17 U.S.C. § 101.

Derivative work – Means a derivative work as defined in the Copyright Act, 17 U.S.C. § 101.

Grant deliverable – 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 C.F.R. § 3474.20(f)).

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Last Modified: 10/21/2020