[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 7376-7397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00910]



[[Page 7375]]

Vol. 82

Thursday,

No. 12

January 19, 2017

Part XII





 Department of Education





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 2 CFR Part 3474





 Open Licensing Requirement for Competitive Grant Programs; Final Rules

  Federal Register / Vol. 82 , No. 12 / Thursday, January 19, 2017 / 
Rules and Regulations  

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DEPARTMENT OF EDUCATION

2 CFR Part 3474

RIN 1894-AA07
[Docket ID ED-2015-OS-0105]


Open Licensing Requirement for Competitive Grant Programs

AGENCY: Office of the Secretary, Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations of the Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards in order to require, subject to certain categorical 
exceptions and case-by-case exceptions, that Department grantees 
awarded competitive grant funds openly license to the public 
copyrightable grant deliverables created with Department grant funds.

DATES: These regulations are effective March 20, 2017.

FOR FURTHER INFORMATION CONTACT: Sharon Leu, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 6W224, Washington, DC 20202. 
Telephone: (202) 453-5646 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background and Summary of This Regulatory Action

    On November 3, 2015, the Secretary published a notice of proposed 
rulemaking (NPRM) in the Federal Register (80 FR 67672) that would 
amend regulations regarding the Uniform Administrative Requirements, 
Cost Principles, and Audit Requirements for Federal Awards. Under the 
amendments proposed in the NPRM, the Department would require, with 
certain categorical exceptions and the ability to grant case-by-case 
exceptions, that entities receiving Department funds under a 
competitive grant program openly license all copyrightable intellectual 
property created with those funds. These final regulations adopt the 
proposed amendments with modifications that we discuss in greater 
detail in these final regulations.
    Under the Department's current regulations, title to intellectual 
property, including copyright, acquired under Department grant funds 
vests in the grantee. At the same time, for any work subject to 
copyright that was developed or for which ownership was acquired under 
a grant award, the Department reserves a royalty-free, non-exclusive, 
and irrevocable right to reproduce, publish, or otherwise use for 
Federal purposes, and to authorize others to do so (referred to as a 
``Federal purpose license''). This license allows the government the 
ability to authorize others to use work funded by Department grants.
    Grantees under the Department's competitive grant programs create a 
number of copyrightable works using Department competitive grant funds 
that have significant benefit for students, parents, teachers, school 
districts, States, institutions of higher education, and the public 
overall. These copyrightable works are wide ranging in nature and 
include instructional materials, personalized learning delivery 
systems, assessment systems, language tools, and teacher professional 
development training modules, just to name a few. The Department's 
grantees creating these works include State educational agencies 
(SEAs), local educational agencies (LEAs), institutions of higher 
education (IHEs), and non-profit organizations and while the works are 
created under a specific grant program and therefore may target a 
specific school or group of students, the resources are such that other 
education stakeholders would significantly benefit from being able to 
access them, reuse them, and in some cases, modify them to address 
their needs and goals.
    It is the Department's experience, however, that copyrightable 
works created under competitive grants made by the Department generally 
have not been disseminated widely to the public. This is the case 
despite the existence of the Federal purpose license and efforts by the 
Department and grantees to proactively make them available. Although 
the Department provides individualized technical assistance and 
actively works with all grantees on dissemination planning, we have 
found that many education stakeholders and other members of the public 
are generally not aware of the educational resources created as a 
result of the Department's competitive grant programs. We believe this 
is because the education resources often are created and disseminated 
locally or disseminated to limited audiences by grantees in 
presentations at research conferences, through professional 
associations, or by commercial mechanisms that are not easily accessed 
by the general public or to a wider group of stakeholders. Even when 
the resources are known to exist, stakeholders and the public are not 
sure how to access them, what usage rights or permissions are necessary 
to use them, or how to obtain those rights or permissions. Accordingly, 
while the Department's Federal purpose license does allow for the 
public to obtain a copy of these works from the Department, this has 
rarely occurred.
    We believe that the open licensing regulation we are adopting here 
will address these key problems. Through an open license, grantees 
under the Department's competitive grant programs will explicitly give 
permission to the public to access, reproduce, publicly perform, 
publicly display, and distribute the copyrightable work; prepare 
derivative works, as defined in the Copyright Act, 17 U.S.C. 101, and 
reproduce, publicly perform, publicly display and distribute those 
derivative works; and otherwise use the copyrightable work, created in 
whole or in part with competitive grant funds provided by the 
Department, provided that in all such instances attribution is given to 
the copyright holder. Copyrightable grant deliverables, or 
deliverables, are final versions of a work developed to carry out the 
purpose of the grant, as specified in the grant announcement (i.e., 
notice inviting applications or application package). The requirement 
will apply both to the deliverables themselves and any final version of 
program support materials necessary to the use of the deliverables. We 
believe that this will result in significantly enhanced dissemination 
of deliverables created with Department competitive grant funds and 
provide education stakeholders and members of the public with a simpler 
and more transparent framework to access, use, and possibly modify 
these deliverables for the benefit of their education communities.
    The approach the Department is taking with this rule is limited in 
scope. It will apply only to grantees receiving Department competitive 
grant funds, which constitutes approximately 10 percent of the 
Department's total discretionary funding. Within that category of 
grants, we anticipate approximately 60 percent would potentially be 
subject to the rule. The rule will not apply to grants that provide 
funding for general operating expenses; grants that provide supports to 
individuals (e.g., scholarships, fellowships); 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;

[[Page 7377]]

copyrightable works created by the grantee or subgrantee that are not 
created with Department funds; 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; peer-reviewed scholarly 
publications that arise from any scientific research funded, either 
fully or partially, from grants awarded by the Department; or grants 
under the Department's Ready to Learn Television Program. Grantees 
receiving funds under the Department's formula grant programs will not 
be subject to the rule. 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, including those rights provided under 
15 U.S.C. 1051, et seq., 18 U.S.C. 1831-1839, and 35 U.S.C. 200, et 
seq. Similarly, the rule does 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.
    The rule also provides for the Department to consider individual 
grantee requests for exception to the open licensing requirement. We 
note in the rule some examples of situations that may be appropriate 
for an exception to the open licensing requirement, such as where the 
Secretary has determined that the grantee or subgrantee's dissemination 
plan would likely achieve meaningful dissemination equivalent to or 
greater than the dissemination likely to be achieved through the open 
licensing requirement. Similarly, we provide the example of a situation 
in which the open licensing requirement would impede the grantee's 
ability to form the required partnerships necessary to carry out the 
purpose of the grant. The list of examples in the rule is not 
exhaustive and is intended to indicate the types of situations in which 
an exception may be appropriate depending on the specific 
circumstances.
    In designing competitions that would not fall within any of the 
categorical exceptions specified in the rule, the Department will also 
consider whether to make an exception for a grant program for a 
particular year's competition. In that regard, the Department will 
consider whether the open licensing requirement conflicts with the 
statutory purpose of the program and whether harm caused to the program 
by implementing the open licensing requirement would outweigh its 
benefit. In granting exceptions, we may consider factors such as the 
following: (1) Possible negative effect on the statutory purpose of the 
program if an open licensing requirement is applied; (2) Possible 
barriers to the intended benefits of broad dissemination if an open 
licensing requirement is applied, for example, 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 the copyrightable grant deliverable given the context 
of the particular program; and (4) Other economic considerations, such 
as an undue financial hardship on the grantees to implement the rule. 
The Secretary's designee(s) will make final decisions about whether a 
program-level exception is granted. In each Notice Inviting 
Applications for a competitive grant program, the Department will 
clearly communicate whether or not the program is subject to the open 
licensing requirement or has received an exception.
    The Department recognizes that implementation of these regulations 
represents a change from current practice and therefore plans to take a 
phased approach to implementing the rule for new competitive grants 
announced in FY 2017 and will fully implement it for all applicable 
competitive grant programs across the Department in FY 2018. This 
approach will provide us additional opportunities to take steps such as 
preparing administrative procedures regarding the consideration of 
requests for exceptions and providing relevant staff training. In FY 
2017, each new competitive grant competition announcement will clearly 
indicate whether this rule will apply so that eligible applicants can 
make informed decisions regarding their participation in the 
competition.
    Public Comment: In the NPRM we published on November 3, 2015, we 
proposed to amend regulations regarding the Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards in order to require that all Department grantees awarded 
competitive grant funds openly license to the public copyrightable 
intellectual property created with Department grant funds. The NPRM 
established a December 3, 2015, deadline for the submission of written 
comments. To ensure that all interested parties were provided 
sufficient opportunity to submit comments, we published a notice in the 
Federal Register (80 FR 74715) on November 30, 2015, which extended the 
public comment period to December 18, 2015.
    In response to our invitation in the NPRM, 146 parties submitted 
comments. We group major issues according to subject and by comments 
submitted in response to the five additional questions we posed. 
Generally, we do not address technical and other minor changes or 
suggested changes the Secretary is not legally authorized to make under 
applicable statutory authority. In some cases, comments addressed 
issues beyond the scope of the proposed regulations. Although we 
appreciate commenters' concerns for broader issues affecting open 
access, because those comments are beyond the scope of this regulatory 
action, we do not discuss them here.
    Analysis of Comments and Changes: An analysis of the comments and 
changes in the regulations since publication of the NPRM follows. We 
note that we have renumbered some of the paragraphs from the proposed 
rule in this final rule. As a result, some of the provisions in the 
proposed rule have different paragraph numbers in this final rule.

General Comments

    Comments: The Department received many positive comments regarding 
the proposed regulations. These commenters praised the Department for 
taking steps to provide broader access for taxpayers to deliverables 
produced with Department grant funds.
    Discussion: We appreciate the commenters' support.
    Changes: None.

Request for Extension of the Comment Period

    Comments: We received several comments requesting that the 
Department extend the public comment period for the NPRM, indicating 
that additional time would be helpful to analyze and respond to the 
Department's proposals.
    Discussion: The Department agreed that additional time for public 
comment would be helpful and extended the comment period by an 
additional 15 days. We believe that 45 days provided the public a 
meaningful opportunity to comment on the proposed rule, and this is 
supported by the complex and thoughtful comments we received.
    Changes: None.

Legal Issues

    Comments: One commenter requested clarification regarding the basis 
for the determination that this regulatory action

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is significant under Executive Order 12866.
    Discussion: This regulatory action is economically significant 
under section 3(f)(1) of Executive Order 12866 as we estimate that it 
will have an annual effect on the economy of more than $100 million. We 
explain this determination further in the Regulatory Impact Analysis 
section of these regulations.
    Changes: None.
    Comments: Several commenters stated that the Department has not 
complied with Executive Order (EO) 13563, which requires agencies to 
base all regulatory frameworks on the best available science. As an 
example, one commenter noted that the impact analysis does not cite 
empirical data or evidence from research and is instead based on 
speculative statements.
    Discussion: The Department has provided further analysis of the 
economic impacts of the regulations in accordance with both Executive 
Order 13563 and Executive Order 12866 in the Regulatory Impact Analysis 
section of these regulations. However, we note that Section 1 of EO 
13563 reiterates principles established by EO 12866 and asks agencies 
``to use the best available techniques to quantify anticipated present 
and future costs as accurately as possible, such as identifying 
changing future compliance costs that might result from technological 
innovation or anticipated behavioral changes.'' Section 1 also 
recognizes that in some cases, careful and accurate quantification may 
not be possible and allows agencies to consider values including 
equity, human dignity, fairness, and distributive impacts that are 
difficult or impossible to quantify. Section 4 requires agencies to 
identify and consider regulatory approaches that reduce burdens and 
maintain flexibility and freedom of choice for the public. In this 
case, our grantees retain the ability to choose to apply to receive 
funding through our grant competitions.
    Each year, the Department funds a wide variety of competitive grant 
programs that support a diverse array of grant-funded copyrightable 
works. Conducting an empirical analysis of the exact costs and benefits 
of this final rule would require data not historically collected in the 
course of the administration of Department grants. Consistent with 
Section 1 of EO 13563, in our analysis of the rule, the Department 
considered qualitative values, including, transparency, equity, and 
distributive impacts, and recognized that some benefits and costs are 
difficult to quantify.
    Changes: None.
    Comments: A few commenters asserted that the NPRM ignores the 
statutory mandate of the Information Quality Act (IQA) (also commonly 
referred to as the Data Quality Act, such as by the commenter). 
Specifically, one commenter stated that the NPRM lacks information 
indicating that the Department has taken necessary steps to ensure that 
the disseminated information is reliable, in accordance with the Office 
of Management and Budget's (OMB) IQA guidelines. The commenter 
indicated that to the extent that direct competitive grant funding is a 
mechanism of the Department to create and disseminate information, the 
Department has not taken those steps.
    Discussion: The Department disagrees with the commenters' 
interpretation of the IQA and the assertion that the Department is not 
in compliance with the requirements of the IQA. Although the comment 
mentioned OMB's Data Quality Act guidelines, the applicable guidelines 
here are the Department's Information Quality Act (IQA) guidelines, 
which were issued pursuant to the direction of OMB's IQA guidelines and 
the IQA. The IQA is a procedural statute that requires the Department 
to issue guidelines: (1) Ensuring and maximizing the quality, 
objectivity, utility, and integrity of information (including 
statistical information) disseminated by the agency, and (2) to 
establish administrative mechanisms allowing affected persons to seek 
and obtain correction of information maintained and disseminated by the 
agency that does not comply with the guidelines. In addition, the IQA 
requires the Department to send reports to the Director of OMB 
periodically.
    The Department has developed the guidelines required under the IQA, 
which are available at: http://www2.ed.gov/policy/gen/guid/iq/infoqualguide.pdf. Notably, those guidelines provide that an affected 
person who does not believe the information the Department disseminates 
complies with the guidelines must provide, among other things: (1) A 
detailed description of the information that the requester believes 
does not comply with the Department's or OMB's guidelines; and (2) an 
explanation of the reason(s) that the information should be corrected 
(i.e., describe clearly and specifically the elements of the 
information quality guidelines that were not followed). We note that 
these guidelines do not govern all information of the Department, nor 
do they cover all information disseminated by the Department. The IQA 
guidelines cover information in four categories that is disseminated by 
the Department and subject to the Paperwork Reduction Act (44 U.S.C. 
3502(1)): (1) Information about education programs; (2) research 
studies and program evaluation information; (3) administrative and 
program data; and (4) statistical data. As a general matter, these 
guidelines do not cover materials created through the support of 
competitive grants, research findings, or other information published 
by grantees.
    We note that the IQA guidelines do provide a procedure for the 
public to register complaints to the Department for applicable 
information covered by the IQA. According to these procedures, any 
member of the public may provide a detailed explanation of the specific 
data being sought or the specific elements of the guidelines that it 
believes we have not followed. If the commenter had provided this 
information we could have attempted to either provide this data in the 
final rule or explain why the data is unavailable to us. If the 
commenter wishes to submit another request under our IQA guidelines, in 
compliance with the procedures those guidelines set out, we would be 
happy to review such a request.
    Changes: None.
    Comments: Several commenters asserted that the proposed regulations 
conflict with the Patent and Trademark Law Amendments Act, also known 
as the Bayh-Dole Act (Pub. L. 96-517, 35 U.S.C. 200 et seq., which 
covers the intellectual property rights for patentable inventions 
resulting from Federal funding, as well as E.O. 12591. Many of these 
commenters questioned whether the Department was aware that 35 U.S.C. 
212 provides to institutions the rights for copyrightable intellectual 
property or whether the Department has the legal authority to require 
an open license under the provisions of that section.
    Commenters citing these conflicts note specifically that computer 
software source code can be both patentable and copyrightable and that 
under the Bayh-Dole Act, inventors, rather than the Federal government, 
are entitled to the title of the patents. These commenters suggested 
that further clarification of rights is necessary in order to avoid 
both confusion and litigation. One commenter noted that the proposed 
requirement to apply an open license to computer software source code 
is overly broad and could potentially cover all patentable inventions, 
trade secrets, or other intangible rights.
    Other commenters who supported the proposed regulation stated that 
the

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proposed open licensing requirement does not present a conflict with 
the Bayh-Dole Act, since the Bayh-Dole Act applies only to patentable 
inventions and not to copyrightable works. In the case of computer 
software, these commenters stated that for the subset of software that 
is considered patentable, the open licensing requirement does not 
prevent the inventor from also seeking patent protection under the 
legal conditions established by the Bayh-Dole Act.
    Discussion: We appreciate the commenters raising these issues and 
agree that further clarification is necessary as to the rule's scope 
and application. The Department notes the distinction between 
copyrightable works, patentable inventions, and information that may be 
protected as trade secrets under applicable laws. The Department 
further acknowledges that products such as computer software may 
contain elements that would be protected under copyright laws, patent 
laws, and trade secret laws, giving rise to commenters' concerns. The 
Department did not intend that this regulation would interfere with 
other intellectual property rights of grantees, including the rights to 
protect trade secrets and to obtain patent protection on inventions. 
Thus, we have revised the rule to clarify this issue.
    Changes: We have revised Sec.  3474.20(d)(1)(viii) to expressly 
provide that the rule does not apply to grantees if 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, 
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.
    Comment: Several commenters raised concerns that the proposed 
regulation contradicts the purpose of the Small Business Innovation 
Research (SBIR) program. These commenters noted that the stated purpose 
of the SBIR program is to encourage domestic small businesses to 
commercialize research-based innovations and that loss of exclusive 
copyright would contradict this purpose. Similarly, commenters also 
note that the proposed regulation would conflict with SBIR program 
directives issued by the Small Business Administration. Other 
commenters urged the Department to provide an exemption to the SBIR and 
Small Business Technology Transfer (STTR) program from this 
requirement.
    Discussion: We note that the Department's SBIR program is currently 
awarded through contract competition rather than grant competition. As 
a result, SBIR operates under the regulations as described in the 
Federal Acquisition Regulations at 48 CFR parts 1-99 and Executive 
Order 13329 rather than 2 CFR part 3474. The Department's SBIR program, 
therefore, is not currently covered by 2 CFR part 3474 of the Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards and would not be subject to this final rule. The 
SBIR program is established under the Small Business Innovation 
Development Act of 1982 (Pub. L. 97-219) and operates according the 
Small Business Administration Policy Directives found at: https://www.sbir.gov/sites/default/files/sbir_pd_with_1-8-14_amendments_2-24-14.pdf. Additional information about the regulations, legislation, and 
guidance for SBIR can be found at: http://www2.ed.gov/programs/sbir/legislation.html.
    Changes: None.
    Comment: Many commenters suggested that any licensing requirements 
should align with current requirements used by other Federal agencies. 
Many commenters who supported the open licensing requirement 
recommended that the Department consider similar requirements 
implemented at the U.S. Department of Labor, the U.S. Department of 
State, and the United States Agency for International Development 
(USAID). These commenters noted that at these agencies, the open 
licensing requirement for grant programs and contracts specifically 
requires Creative Commons \1\ licenses. Some commenters suggested that 
the regulations be aligned with current practice at the National 
Science Foundation.
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    \1\ Creative Commons is a global non-profit organization whose 
mission is to promote sharing and reuse through free legal tools. 
The organization is most well-known for public copyright licenses 
known as Creative Commons licenses.
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    Discussion: In developing these final regulations, the Department 
did take into account the experiences of other Federal agencies with 
open licensing. Specifically, we (1) considered the Office of 
Management and Budget's (OMB) Open Government Directive in M-13-13 
Memorandum for Heads of Executive Departments and Agencies on Open Data 
Policy, which describes the Administration's intent to promote use of 
open licenses, in consultation with Project Open Data, the online, 
public repository intended to promote the continual improvement of the 
Open Data Policy, that allow minimal restrictions on copying, 
publishing, distributing, transmitting, adapting, or otherwise using 
the information for non-commercial or for commercial purpose; and (2) 
consulted with other grant-making agencies through an inter-agency 
working group on open education to better understand their grant-making 
processes and implementation best practices. These final regulations 
are based on our review of these issues and reflect our determination 
as to how best to tailor an open licensing requirement to the needs of 
our grant programs and grantees.
    We also note that the Department regularly engages our colleagues 
at other Federal agencies to explore the use of openly licensed 
resources in advancing the goals of our programs. In June 2016, the 
Department, in collaboration with NSF and the Institute for Museum and 
Library Services (IMLS), convened an Open Educational Resources (OER) 
Research Meeting, attended by representatives from #GoOpen States and 
Districts, leading principal investigators of projects funded by NSF, 
IMLS, and the Department's Institute of Education Sciences (IES) 
programs, as well as with other knowledgeable education stakeholders 
and researchers. The convening was designed around articulating key OER 
research issues, identifying OER research infrastructure needs, and 
exploring potential partnerships to pursue research and development 
projects. A separate, more detailed discussion regarding the suggestion 
to use Creative Commons licenses is below.
    Changes: None.
    Comment: Several commenters stated that this rule is unnecessary 
because, under current policy, the Department can already disseminate 
works created through grant funds. These commenters cite the current 
policy in 2 CFR 200.315(b) that provides the Federal awarding agency 
with a royalty-free, nonexclusive and irrevocable right to reproduce, 
publish, or otherwise use the work for Federal purposes, and to 
authorize others to do so.
    Discussion: As we discuss elsewhere in these final regulations, in 
practice, the Department has exercised the Federal purpose license 
described in 2 CFR 200.315(b), and previously established in 34 CFR 
parts 74 and 80, only in rare cases and in those instances the license 
did not allow the public to access resources directly without first 
contacting the Department. This regulation should enable deliverables 
produced under our competitive grants to be more readily available to 
the public. As discussed earlier, we are concerned that the current 
policy has

[[Page 7380]]

not allowed for broad or efficient dissemination of copyrightable 
works.
    Changes: None.
    Comment: One commenter noted language in the preamble to the 
proposed rule where the commenter thought that, in order to ensure an 
open license, the grantee must not be allowed to copyright works 
resulting from Department funding. The commenter noted that, in fact, 
licenses of any kind are only needed when one party has legal rights, 
such as those established by copyright.
    Discussion: We agree that the explanation in the preamble of the 
NPRM could have been clearer and appreciate the opportunity to clarify 
these issues. The NPRM did not propose to amend the Copyright Act of 
1976 (17 U.S.C. 101 et seq.), which would be outside of the scope of 
the Department's authority. The legal framework for open licenses is 
built on the foundation established by the Copyright Act, which 
automatically gives protection to original works of authorship at the 
moment they are fixed in any tangible medium of expression and provides 
certain exclusive rights to authors of these works, 17 U.S.C. 106. In 
addition to those exclusive rights, the Copyright Act and other 
provisions of federal and state law provide various elements of what 
are known internationally as ``moral rights.'' \2\ In addition, the 
Copyright Act provides for termination rights, i.e., the right of the 
author or her statutorily designated successors in interest to 
terminate a copyright transfer or license during a five-year period 
beginning several decades after the date of the grant or of first 
publication of the work. Thus, in the final rule, we clarify that 
grantees will retain ownership of their respective copyrights to their 
original works of authorship but, by accepting Department grant funds, 
agree to license to the public the right to exercise their exclusive 
rights. We also clarify that the rule does 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. We have revised the 
regulatory text to make these clarifications.
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    \2\ Moral rights include the rights ``(1) to claim authorship of 
their works (`the right of paternity'); and (2) to object to 
distortion, mutilation or other modification of their works, or 
other derogatory action with respect thereto, that would prejudice 
their honor or reputation (the `right of integrity').'' S. Rep. No. 
100-352 at 9 (1988); see Berne Convention for the Protection of 
Literary and Artistic Works, Art. 6bis. The sources for such rights 
under U.S. law include various provisions of the Copyright Act and 
Lanham Act, and various state laws. S. Rep. No. 100-352 at 9.
---------------------------------------------------------------------------

    We note that the proposed rule excluded current 2 CFR 200.315(b) 
from the Department's regulations. We proposed this exception to avoid 
any inconsistency between the proposed open licensing rule and the 
provision in 2 CFR 200.315(b) recognizing a copyright to material 
developed with grant funds. In light of the comment we received, 
however, we recognize that there is not an inconsistency and therefore, 
there is no need to exclude 2 CFR 200.315(b) from our regulations. As 
the commenter pointed out, a grantee must hold a copyright to any 
material to which it provides a copyright license. Indeed, central to 
the functionality of this final rule is the existence of provisions 
that give title for intangible property created with Federal support to 
the creators that is provided in 2 CFR 200.315(a) and (b).
    Changes: In final 2 CFR 3474.20, we have removed the exception of 
Sec.  200.315(b) from the Department's regulations. We also removed 
proposed Sec.  3474.20(d), which retains the Federal government's 
rights to copyrighted material, because the substance of that paragraph 
is already contained in Sec.  200.315(b). Additionally, we have added 
an exception to Sec.  3474.20(d)(2) to expressly provide that the rule 
does 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.

Scope and Definitions

    Comment: None.
    Discussion: For the purposes of this regulatory action, there is no 
substantive difference between ``direct competitive discretionary 
grant'' and ``competitive grant.'' We have selected the shorter term 
for the sake of clarity and to enable better understanding in the 
field.
    Changes: Throughout this rule, we replaced ``direct competitive 
discretionary grant'' with ``competitive grant.''
    Comment: One commenter noted that the term ``grantee'' is not 
defined in 2 CFR part 200 and that its use in the NPRM could include 
both for-profit and not-for-profit entities. The commenter made several 
observations related to the applicability of the proposed rule for 
different types of grantees and suggested that the Department 
separately review impacts on for-profit and not-for-profit entities and 
specifically questioned whether the NPRM should apply to for-profit 
entities.
    Discussion: Although the term ``grantee'' is not defined in 2 CFR 
part 200, our regulations at 34 CFR 77.1 define the term ``grantee.'' 
As defined in 77.1, a ``grantee'' includes any entity that receives a 
grant, which can include both for-profit and not-for-profit entities. 
Applying this rule to for-profit entities is consistent with 2 CFR 
200.101(c), which provides that a Federal awarding agency may apply the 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards regulations to for-profit entities unless there is a 
conflict with international obligations. We note that, in general, the 
eligibility requirements for our programs contained in statute limit 
eligibility to governmental entities and not-for-profit entities and 
for-profit entities are only eligible for our competitive grant funds 
in rare instances. Thus, the suggestion to review the impact of this 
rule on each type of grantee (not-for-profit and for-profit entities) 
separately is unnecessary.
    In reviewing this issue, we realized that the proposed rule was not 
clear on whether the open licensing requirement would apply to 
subgrantees. We believe that it would and have revised the rule to make 
clear that it applies to the subgrantees of competitive grantees that 
are subject to this rule.
    Changes: We have added ``subgrantee'' to various paragraphs 
throughout the rule.
    Comment: One commenter requested a definition of the meaning of 
``Federal purpose,'' as used in the NPRM.
    Discussion: Because we removed the proposed exception to 2 CFR 
200.315(b), this final rule does not use the term ``Federal purpose.'' 
Therefore, there is no need to elaborate on the meaning of this term 
for the purposes of this final rule.
    Changes: None.
    Comment: One commenter requested a more precise definition of Open 
Education Resources (OER). This commenter stated that the broad 
definition provided in the NPRM of openly licensed educational 
resources could lead to confusion on usage rights.
    Discussion: It is important to note that for the purposes of this 
regulation, we do not use the term OER. Instead, we are requiring that 
an open license be applied to all grant deliverables, including final 
versions of program support materials that are necessary to the use of 
the deliverables, developed to carry out the purpose of the grant, that 
are created by Department grantees or subgrantees, wholly or in part 
with Department competitive grant funds. A subset of the resources that 
may be required to be openly licensed will meet the common definition 
of OER, but this rule is not limited to only OER. Furthermore, we 
believe that the education-focused policy reflected in these final 
regulations establishes clearly the conditions of an open

[[Page 7381]]

license. That is, 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.'' However, we believe that greater clarity concerning 
usage rights would be achieved by including a definition of 
``derivative works'' and we have revised the rule to do so.
    Changes: We have modified Sec.  3474.20(f)(2) to provide that ``[a] 
``derivative work'' means a ``derivative work'' as defined in the 
Copyright Act, 17 U.S.C. 101.''
    Comment: One commenter requested a clearer definition of the term 
``peer-reviewed research publications.''
    Discussion: The proposed rule used the term ``peer-reviewed 
research publications'' in describing materials that will not be 
covered by this final rule. This is terminology that differs slightly 
from the terminology used in the IES Policy Regarding Public Access to 
Research (``public access policy'') \3\ that uses the term ``peer-
reviewed scholarly publications.'' For the purposes of this final rule, 
we use the term ``peer-reviewed scholarly publications'' to refer to 
final peer-reviewed manuscripts accepted for publication, that arise 
from research funded, either fully or partially, by Federal funds 
awarded through a Department of Education grant, procurement contract, 
or other agreement. A final peer-reviewed manuscript is the author's 
final manuscript of a peer-reviewed scholarly paper accepted for 
publication, including all modifications from the peer review process. 
The final peer-reviewed manuscript is not the same as the final 
published article, which is defined as a publisher's authoritative copy 
of the paper, including all modifications from the publishing peer-
review process, copyediting, stylistic edits, and formatting changes. 
However, the content included in both the final peer-reviewed 
manuscript and the final published article is identical.
---------------------------------------------------------------------------

    \3\ https://ies.ed.gov/funding/researchaccess.asp.
---------------------------------------------------------------------------

    We note that we have expanded the exception in Sec.  
3474.20(d)(1)(v) to include all peer-reviewed scholarly publications 
that arise from any scientific research funded, either fully or 
partially, from grants awarded by the Department. This change is 
discussed further elsewhere in this preamble. Although the final rule 
no longer references the IES public access policy specifically, we are 
using the term ``peer reviewed scholarly publications'' because it is 
used by IES grantees, who represent a majority of those covered by this 
exception and is widely used in the field.
    Changes: We have revised 2 CFR 3474.20(d)(1)(v) to use the same 
term defined in the IES public access policy, ``peer-reviewed scholarly 
publications.''
    Comment: Many commenters generally appreciated the conditions of 
the open license required in Sec.  3473.20(a) and praised the 
Department for including terms that would ensure the broadest possible 
use by eliminating barriers while ensuring authors receive attribution 
for their work.
    Discussion: We appreciate the commenters' support.
    Changes: None.
    Comment: Many commenters that supported the conditions of the open 
license proposed in the NPRM suggested that these conditions be 
expanded to explicitly include the ``right to redistribute'' openly 
licensed materials, including adapted derivative works. These 
commenters note that without this explicit right, grantees may 
interpret the conditions to restrict downstream users from distributing 
any modifications or adaptations made to these materials. The 
commenters assert that the free distribution of modifications or 
adaptations makes open licenses powerful tools for innovation when any 
member of the public can modify or adapt grant-funded resources. 
Conversely, some commenters proposed additional modifications that 
would explicitly prohibit downstream users of the openly licensed 
materials, including adapted derivative works, from restricting usage 
or commercially distributing derivative works. These include Creative 
Commons licenses with Non-Commercial and Share-Alike restrictions.
    Discussion: The Department agrees with the importance of having the 
ability to adapt and modify openly licensed materials, and to 
distribute those adaptations and modifications. We generally believe 
that where there are few restrictions on the terms of use and 
distribution, the Department's grant-funded resources will be 
disseminated widely. To that end, we have expressly clarified that for 
copyrightable grant deliverables created in whole or in part with 
Department competitive grant funds, the grantee or subgrantee must 
include as a term of the open license, the right to prepare derivative 
works and reproduce, publicly perform, publicly display and distribute 
those derivative works. At the same time, we appreciate commenters' 
concerns regarding ensuring that a grantee or subgrantee has the 
discretion to select an open license, including a license that limits 
use of the grant deliverable to noncommercial purposes. Although we 
intended in the proposed rule that a grantee would have this 
discretion, we realize this was not clear and are revising the 
regulation to reflect the grantee's or subgrantee's discretion in this 
area.
    For copyrightable works that are not funded by the Department, we 
have similarly left the terms under which any derivative works may be 
licensed to the discretion of the owner of the derivative work (e.g., 
if a grantee created a deliverable with grant funds and then creates a 
derivative work with other funding, the grantee would have the 
flexibility to choose how to license the derivative work, such as 
through commercial channels).
    Finally, as discussed earlier in this section, we have defined the 
term ``derivative work'' to have the same meaning as contained in the 
Copyright Act.
    Changes: We have modified Sec.  3474.20(b)(1) to explicitly provide 
the right to prepare derivative works based upon the openly licensed 
works, as well as the right to reproduce, publicly perform, publicly 
display and distribute those derivative works. We have also revised 
Sec.  3474.20(b)(2) to reflect that a grantee or subgrantee has the 
discretion to select a license that limits use of the grant deliverable 
to noncommercial purposes. In addition, we have modified Sec.  
3474.20(f)(2) to provide that ``[a] ``derivative work'' means a 
``derivative work'' as defined in the Copyright Act, 17 U.S.C. 101.''
    Comment: In addition to comments on the conditions of open 
licenses, many commenters recommended that the Department specify the 
type of licenses that grantees should use under this rule. In 
particular, commenters suggested that the Department clearly reference 
or require the use of Creative Commons licenses. Commenters offered a 
number of considerations.
    First, commenters noted that without a commonly understood 
licensing framework, lack of clarity over terms of use would impede the 
Department's goals of widespread sharing and dissemination. For 
example, individual grantees could each create their own open licenses 
by following the conditions provided in the proposed rule. While their 
intent would be to

[[Page 7382]]

meet the requirements of the rule, the proliferation of novel licenses 
could result in confusion about usage rights or concerns about 
interoperability with other existing licenses. In these cases, the new 
or non-standardized licensing language may discourage or delay adoption 
or integration of resources due to the additional time and resources 
required to interpret the unfamiliar language and to verify legal 
interoperability issues and widespread sharing and dissemination could 
decrease, rather than increase. Directing grantees towards a licensing 
framework with broad familiarity would enhance the utility of the 
requirement and enable more immediate impact. These commenters cite 
Creative Commons licenses as the most commonly known, easily 
recognizable, and widely-used public license. To support this claim, 
commenters cited Web sites such as Wikipedia, Flickr, and 
Whitehouse.gov as well-known repositories of content that is openly 
licensed using Creative Commons licenses. Others note that Creative 
Commons recently reported that one billion works are licensed using one 
of their public licenses.
    Second, commenters stated that the Department should adopt a 
Creative Commons licensing framework because it would align with 
frameworks already in place at other organizations. This alignment 
would enable entities to collaborate and share resources across these 
projects with fewer barriers. For example, commenters pointed to open 
licensing and access policies by other funders including the Bill and 
Melinda Gates Foundation, the William and Flora Hewlett Foundation, the 
Ford Foundation, the World Health Organization, and the World Bank, 
that require use of Creative Commons licenses. Commenters also pointed 
to other governments (the United Kingdom, Australia, and Poland) that 
have identified Creative Commons licenses as they begin to implement 
similar policies. Many commenters pointed to grant programs at the 
Department of State, including USAID, and the Department of Labor's 
Trade Adjustment Assistance Community College and Career Training 
(TAACCCT) grant program as examples of programs at other Federal 
agencies that have already implemented open licensing requirements 
using Creative Commons licenses. Commenters noted that Creative Commons 
licenses have been embraced by open courseware projects that have 
produced diverse educational materials and innovative textbook 
offerings currently used at hundreds of major colleges and universities 
and K-12 schools throughout the country.
    Third, commenters stated that individually created licenses may 
satisfy the conditions provided in the proposed rule, but may not have 
the same force or effect of law. Commenters asserted that Creative 
Commons licenses are legally robust, internationally recognized 
licenses that are enforceable and easily adopted worldwide as they were 
written to conform to the international treaties governing copyright.
    Finally, commenters noted the practicality of a Creative Commons 
license. These commenters stated that while Creative Commons licenses 
have a three-layered design (legal, human readable, machine-readable), 
the process of selecting and affixing the license and license deed is 
simple. In addition, commenters pointed to the wide availability of 
tools and resources developed to support the implementation of the 
Creative Commons licensing framework in various contexts. By adopting 
the same licensing framework, the Department could also utilize these 
existing tools and resources in its own implementation and training 
activities.
    Discussion: We agree that the particular terms of the Creative 
Commons Attribution licenses (CC BY) are an example of a permissible 
type of license. However, we are concerned that limiting the license to 
only a CC BY license would result in less flexibility for grantees and 
would not account for changes and developments that could occur with 
respect to the types of licenses commonly used. We believe an 
appropriate balance of these concerns is to maintain our description of 
an open license.
    However, we have revised Sec.  3474.20(b)(2) to provide greater 
specificity concerning the requirements for the open licenses that a 
grantee may use under this rule that ensure that licenses selected are 
readily identified, either visually or electronically, and to minimize 
confusion about licensing terms and usage rights. These include the 
requirement that grantees use 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).
    Changes: In Sec.  3474.20(b)(2) we added provisions requiring that 
any license used contain the following features: (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).
    Comment: Many commenters suggested that the Department expand the 
scope of the proposed rule beyond competitive grants to include all 
grants funded by the Department, including those grants funded by 
formula. These commenters note that while the absolute amount of 
funding that is available through competitive grant programs is not 
insignificant, it is small proportionally, when compared with the total 
funding available through formula programs. The commenters noted that 
in excluding formula grant programs funded under the Elementary and 
Secondary Education Act of 1965 (ESEA), as amended by the Every Student 
Succeeds Act (ESSA), and the Individuals with Disabilities Education 
Act (IDEA), the Department overlooks valuable resources created as a 
result of these programs. A few of these commenters specifically noted 
that with the passage of ESSA, many programs that were previously 
funded as competitive grants have been converted to State block grants, 
further decreasing the number of programs that would be covered by the 
proposed rule. The commenters noted the loss of public benefit, and 
encouraged the Department to promote greater development of open 
educational resources as a critical strategy to ensuring educational 
equity, especially for those served by schools in less wealthy 
communities.
    Discussion: In developing the proposed rule, we considered whether 
it should apply to formula grants but we believe it is most appropriate 
to limit the applicability of the rule to competitive grants. Based on 
our experience in implementing this final rule for the Department's 
competitive grant programs, we will explore whether it is appropriate 
to expand its coverage to other Department grant programs.
    With respect to ESSA, we note a few provisions that may be helpful 
in establishing the broader context of the Department's work to 
increase dissemination of educational materials through the use of open 
educational resources and educational technology. In particular, we 
note that while Title IV of ESSA authorizes block grants for services 
that previously were provided under competitive grants under ESEA, 
openly licensed resources are now incorporated more broadly into all 
digital education interventions funded by ESSA formula programs. For 
example, ESSA incorporates open

[[Page 7383]]

educational resources into the definition of digital learning in 
section 4102. As a result, open educational resources may be more 
easily incorporated into programs authorized under section 4101 to 
expand digital learning opportunities to rural and remote areas or to 
develop courses or curricula that incorporate digital learning 
technologies and under section 4109, to allow LEAs receiving subgrants 
from States to implement similar measures in their districts. 
Separately, States receiving allotments under section 4104 may use them 
to increase access to personalized learning experiences, including 
``making content widely available through open educational resources.''
    Change: None.
    Comment: Some commenters requested that the Department explicitly 
communicate which of the Department's grant programs would be impacted 
by the open licensing requirement. These commenters noted that the 
language of the NPRM leaves open to interpretation the particular grant 
programs covered and has resulted in confusion over whether it would be 
applicable to grants awarded under the SBIR program.
    Discussion: We address these comments on identifying the 
Department's grants that would be impacted by this rule in the 
Regulatory Impact Analysis section of these final regulations because 
this issue of applicability is closely tied to budgetary and regulatory 
impact concerns. We address the question of whether this rule applies 
to the SBIR program in a separate Discussion section above.
    Changes: None.
    Comment: One commenter asked whether the requirements and exemption 
provided in proposed Sec.  3474.20(c)(3) applied only to peer-reviewed 
research publications that result from IES-funded research or whether 
it is applicable to publications resulting from all Department-funded 
research. The commenter also asked whether the proposed rule would 
require that the work of writing the article also be funded by the 
grant, in order for the requirements to apply.
    Other commenters suggested that the Department eliminate the 
exception for peer-reviewed research publications under the proposed 
rule. These commenters noted that, although the IES; public access 
policy makes peer-reviewed scholarly publications available for the 
public to access, these same publications would still be subject to 
copyright restrictions. These commenters expressed concern that 
exempting peer-reviewed research unintentionally overlooks materials 
that would be of value to the public and to the scientific community 
and encouraged the Department to apply the rule uniformly for all 
grant-funded materials, including these publications. The commenters 
recognized that IES' current public access policy is consistent with 
the requirements laid out in the 2013 Office of Science and Technology 
Policy (OSTP) Memorandum for Heads of Executive Departments and 
Agencies https://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf. However, they stated that 
requiring an open license, in addition to requiring public access, 
could provide an opportunity to accelerate scientific discovery and 
fuel innovation. One commenter recommended that research publications 
be made available under a CC BY license, aligning our rule to 
requirements for publications resulting from scientific research funded 
by other organizations, such as the Bill and Melinda Gates Foundation. 
Another noted the high cost of access to research publications and that 
removing the exception would ease financial constraints on some 
institutions.
    Other commenters that did not support the proposed rule applauded 
the Department for exempting peer-reviewed research publications 
covered by the IES' public access plan. These commenters noted that the 
2013 OSTP Memorandum provides an example of a policy that appropriately 
balances policy benefits of open access while accommodating journal 
publisher subscription business models.
    Discussion: While the majority of research and development 
activities at the Department are supported through competitive grants 
administered by the two IES research centers, commenters rightly 
observe that research and development investments are also supported by 
other offices within the Department. These include the Office of 
Innovation and Improvement, the Office of Special Education and 
Rehabilitative Services (OSERS), the Office of Postsecondary Education 
(OPE), and the Office of Career, Technical, and Adult Education 
(OCTAE).
    The exception in proposed Sec.  3474.20(c) would have applied only 
to IES grantees because peer reviewed scholarly publications produced 
under those grants are subject to the IES' public access policy, which 
ensures that those publications are made available to the public 
through posting on the Education Resources Information Center (ERIC). 
In the final rule, we have broadened this exception to cover any peer-
reviewed scholarly publications funded by any Department grant, not 
just an IES grant. We do not believe this significantly changes the 
practical application of this exception; rather, we believe it makes 
the application of our rule more consistent. We note that the majority 
of research and development activities at the Department are the result 
of IES research grants. For IES grants that result in peer reviewed 
scholarly publications, the requirements of the IES public access plan 
will still apply. Currently, the Department is exploring the 
development of a rule, which would be subject to Administrative 
Procedures Act notice and comment requirements, which would extend the 
IES public access requirements for peer-reviewed scholarly publications 
to all Department grantees. Additionally, we have removed the reference 
to the IES public access plan from the exception in the corresponding 
final Sec.  3474.20(d)(1)(v) because that plan is not applicable to 
Department grants funded outside of IES. The IES public access policy 
is a document that, under 20 U.S.C. 9581, could be revised without 
rulemaking. In light of the fact the document could continue to evolve, 
we do not think it is appropriate to rely on it for the scope of the 
exception.
    One commenter also correctly noted that the work of writing 
publications may not always be funded by research and development 
grants. Regardless of whether the work of writing the article is grant-
funded, if the research on which the publication is based is supported 
in whole or in part by grant funds, then the exception in final Sec.  
3474.20(d)(1)(v) applies.
    Conversely, some grant programs may fund the authorship of articles 
for publication that do not arise from any scientific research funded 
by the Department. In these cases, the grantee would be required to 
apply open licenses to the new works of authorship as described in 
final Sec.  3474.20(a).
    In response to the comments to eliminate the exception in proposed 
Sec.  3474.20(c)(3), we think that at this time, it is necessary to 
provide for an exception for peer-reviewed scholarly publications. The 
research community benefits from allowing the results of scientific 
research, including research funded by the Department, to be published 
in scientific journals and subjected to the rigors of peer-review that 
is a prerequisite to such publication. We note that we are not 
maintaining the exception in order to accommodate journal publisher 
subscription business models. Rather, we recognize that there are 
limited number of open access research journals. Requiring these 
grantees to

[[Page 7384]]

openly license the publications at this time may limit their ability to 
distribute rigorously reviewed scholarly publications without this 
exception.
    Changes: We have moved this exception from proposed paragraph 
(c)(3) and into final paragraph (d)(1)(v) and removed the reference to 
the IES public access policy from the exception. We also expanded the 
exception to include all peer-reviewed scholarly publications resulting 
from research grants awarded by any office within the Department.
    Comment: Many commenters expressed concern that the open licensing 
requirement would cause grantees to violate existing copyright or 
licensing restrictions if they were required to openly license 
materials. For example, one commenter noted that grant-funded 
educational resources could incorporate the use of licensed stock 
photos. Similarly, some commenters note that in many cases, the new 
modifications to existing intellectual property may require the 
original, copyrighted work in order for context or application. Another 
commenter indicated there was confusion in understanding the difference 
between our usage of the phrases ``pre-existing content'' and 
``existing intellectual property.'' Many commenters pointed in 
particular to modifications of computer software, where improvements 
would not be useful without access to the original licensed programs.
    Discussion: It is not our intent to cause any grantee to violate 
any existing copyrights or licensing restrictions. First, this rule 
covers only those grant deliverables that are created wholly or in part 
with Department competitive grant funds, and that constitute new 
copyrightable works. In instances where the grant deliverables consist 
of copyrightable modifications to a pre-existing work, the rule only 
extends 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. This rule does not impose a requirement to license pre-existing 
works. This rule also does not require the grantee to modify the terms 
of any pre-existing license or restrictions, irrespective of whether 
the grantee is the copyright owner. To ensure these points are clear, 
we are revising the rule to reflect that it does not cover 
copyrightable works that are not created with Department grant funds or 
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. Further, the rule does not apply to grantees or 
subgrantees where compliance would result in a conflict with the 
grantee's or subgrantee's other intellectual property-related 
obligations, such as those under the terms of a license agreement.
    Similarly, this rule does not require that grantees provide access 
to computer programs protected under copyright or other laws. We 
understand that in many cases, the modifications may only be viable 
within the context of existing commercial software or platforms. 
However, we believe that these modifications, accompanied by any 
supporting documentation, may benefit other users of the same 
commercial software or platforms to the extent that these modifications 
can be separately identified and extracted from the underlying 
proprietary work and that open licensing would be permissible under the 
terms of any restrictions applicable to that underlying work. In light 
of these comments, we have revised the text of the rule to make this 
distinction more salient.
    Finally, we agree that the references to ``pre-existing content'' 
and ``existing intellectual property'' required appropriate revisions 
in order to provide greater clarity to the public.
    Changes: We have revised Sec.  3474.20(a) to provide that the rule 
applies to copyrightable modifications to pre-existing works, to the 
extent such modifications 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.'' 
Additionally, Sec.  3474.20(d)(1)(iv) and (e), now provide, 
respectively, that the rule does not apply to ``[c]opyrightable works 
created by the grantee or subgrantee that are not created with grant 
funds,'' or ``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.'' Also, Sec.  3474.20(d)(1)(vi) 
now provides that the rule does not apply to ``[g]rantees 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.'' Finally, the references to ``pre-existing content'' and 
``existing intellectual property'' have been removed and the rule now 
refers to ``pre-existing works.''
    Comment: Many commenters stated that the requirement to openly 
license copyrightable works is overly broad. Commenters noted that the 
Department appears to intend to implement the regulation 
indiscriminately, without regard for how to distribute works for 
maximum benefit or without regard for whether the public would benefit 
from the intellectual property. Specifically, one commenter noted that 
emails, deliberative work product, and assessments, among other 
resources would be included in this requirement.
    Discussion: Our intention with these regulations is to ensure broad 
dissemination of and access to high-quality educational resources. We 
recognize that, in the course of developing these resources, grantees 
will generate additional copyrightable materials such as email 
correspondence, administrative documentation, or deliberative work 
products. Although these materials are items that are considered 
copyrightable works produced through a grant project, many of them will 
not be considered program support materials necessary to the use of the 
deliverables and therefore would not need to be openly licensed. 
Others, however, may be considered program support materials necessary 
in order to understand, learn from, and replicate deliverables. For 
example, some outreach materials may describe grant deliverables to 
stakeholders, or others may document best practices in implementation 
for specific target populations. These program support materials that 
are considered necessary to the use of grant deliverables, must be 
openly licensed and made available to the public. Other items, such as 
staff training curricula, 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 part of 
their dissemination plan. In cases where these support materials are 
appropriately considered records, grantees should follow record-keeping 
requirements in 34 CFR 75.730-732. Our goal is to ensure that the 
public may benefit from the sharing of those grant products that may 
have significant value, but not to unduly burden grantees.
    We agree with the commenters that our intentions and the rule's 
scope

[[Page 7385]]

should be clarified and are revising the final rule to narrow the scope 
of the copyrightable works that must be openly licensed under Sec.  
3474.20(a) to copyrightable grant deliverables. Specifically, we are 
including a definition of ``grant deliverable'' in the final 
regulations and specifying that the open licensing requirement only 
applies to grant deliverables. Under the definition, 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.
    The Department is committed to working with grantees to develop 
licensing and dissemination strategies that are particular to their 
grant program, offer appropriate privacy protection, do not create 
duplicative work for the grantee, and are consistent with the goals of 
the grant program and this final rule. Department staff will be trained 
to address these items throughout the implementation period of the 
rule. We note that it is impossible for us to make specific 
determinations in advance about which resources would be of use to 
various stakeholders in the field and believe our goals are best 
accomplished when the public is given access to the broadest array of 
materials created to make their own determination regarding their 
usefulness. The Department will provide further guidance to grantees 
concerning grant deliverables during implementation of grant programs.
    Changes: We have added Sec.  3474.20(f) to provide a definition of 
``grant deliverable'' to mean 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
    Comment: One commenter expressed concern over the potential 
negative effects of the proposed regulation on grantees of the 
Department's Ready to Learn Television grant program, and recommended 
the Department add an exception for ``grants that provide funding for 
public television entities.'' The commenter detailed consequences of 
the final regulation in three broad categories.
    First, the commenter indicated that under existing programmatic 
requirements, content and resources created by the Ready to Learn grant 
program are already distributed as broadly as possible. In implementing 
these distribution and outreach requirements, the commenter noted that 
grant-funded television content is distributed over-the-air to almost 
every household in America and grant-funded transmedia content such as 
mobile applications and other digital resources are already available 
at no cost to teachers, parents, and children.
    Second, the commenter indicated that the quality and sustainability 
of materials created with Ready to Learn grant funds would be 
undermined. The commenter noted that Ready to Learn grant funding 
serves as seed funding for many of the public television series and 
transmedia content and asserted that without non-exclusive distribution 
rights it would be impossible to secure additional funding through 
public-private partnerships. In addition, the commenter noted that it 
would be impossible to secure partnerships with experienced producers 
of top quality educational series. Similarly, the commenter noted that 
Ready to Learn grantees, together with experienced producers, have been 
able to create resources that are qualitatively different than content 
created by other grantees and that the open license requirement would 
preclude production of any further content.
    Finally, the commenter stated that the impact of the open license 
would extend beyond loss of revenue to encompass loss of educational 
content that would not be produced in response to this regulation. In 
addition, the commenter noted that resources produced by Ready to Learn 
funding can be used broadly by educators in accordance with the fair 
use provisions of copyright law and that testing and research have 
shown that there is no indication of a further need for educators to 
create derivative works. The commenter also stated that contrary to the 
Department's expectation that the proposed regulations would not have a 
significant economic impact on a substantial number of small entities, 
the proposed regulation would have a significant impact on a 
substantial number of small entities as it would reduce the programming 
available for small entity licensee stations to air, and would degrade 
community and foundation financial support for stations by constraining 
stations' ability to engage with and serve their local communities.
    Discussion: The Department values the work of our Ready to Learn 
grant recipients. We appreciate the commenter's data on the broad 
distribution and availability of the television and digital content 
created by public television entities through the Ready to Learn 
Television grant program. We commend the Ready to Learn Television 
program grantees for creating high quality, research-based transmedia 
content that is readily available to early learners of many diverse 
backgrounds.
    We have added an exception in Sec.  3474.20(d)(1)(vi) for grantees 
or subgrantees under the Ready to Learn Program because of two factors 
unique to the design and statutory mandate of the Ready to Learn 
program. First, one stated goal of the proposed regulation is the broad 
distribution of materials funded by the Department. The commenter 
provided evidence that the particular qualities of the Ready to Learn 
distribution model and transmedia strategy, and the specific 
programmatic and statutory requirements to broadly distribute these 
materials have achieved market dissemination at least equivalent to the 
dissemination likely to be achieved through compliance with this final 
rule. Second, a stated goal of the proposed regulation is to spur 
innovation through creative reuse of grant-funded materials. As the 
commenter notes, many of the resources created under the Ready to Learn 
program are based on pre-existing intellectual property and the 
intellectual property owned by the grantee in the final grant 
deliverable, in isolation, would provide minimal opportunity for 
meaningful adaptation, modification, or other re-use.
    We disagree with the commenter's recommendation that the Department 
adopt a categorical exception for all grants that provide funding for 
public television entities. Although it is apparent from the comment 
that the recommended exception was specifically with reference to the 
Ready to Learn television grant program, we note that public television 
entities may also be the recipient or sub-recipient of other Department 
grants subject to this regulation. For example, public television 
entities have received funding as partners in the Special Education 
Educational Technology, Media, and Materials for Individuals with 
Disabilities Program (formerly Technology and Media Services for 
Individuals with Disabilities). The recommended exception, as written, 
would apply too broadly to any grant in which a public television 
entity was a recipient or sub-recipient, without sufficient evidence 
that all public television entities would be adversely affected by this 
rule in a similar manner.
    The reasons the commenter gave for a categorical exception are 
seemingly unique to grantees under the Ready to Learn grant program.
    Changes: We have revised the final regulations to provide that 
grantees under the Ready To Learn Television

[[Page 7386]]

Program, as authorized in section 2431 of the ESEA, 20 U.S.C. 6775, are 
excepted from the rule's requirements.
    Comment: A few commenters expressed concerns with the proposed rule 
in the context of the Department's broader #GoOpen initiative to 
encourage States, school districts, and educators to use openly 
licensed educational materials. One commenter disagreed with the 
Department's assertion that openly licensed materials will increase 
equity, suggesting that inequality of connectivity and hardware 
necessary to access openly licensed resources and costs of printing of 
digital materials instead preserves the existing inequalities between 
schools. This commenter also stated that rather than empowering 
teachers, adaptable, openly licensed resources actually impose 
additional burdens on already overtaxed teachers. Finally, another 
commenter similarly questioned whether the Department, in expressing a 
preference for openly licensed educational resources, might be 
distorting fair market competition for educational materials.
    Discussion: We appreciate the comments on the #GoOpen initiative. 
Because the #GoOpen initiative is an activity separate from this 
rulemaking, many of these concerns are beyond the scope of this 
regulatory action. However, we believe a few clarifications will limit 
any confusion between these activities, and their differing scopes.
    The #GoOpen movement is a specific movement where districts and 
states voluntarily participate in a community of practice focused on 
the use of openly licensed, digital resources. For these #GoOpen 
districts and States, openly licensed resources provide opportunities 
for cost savings and dissemination and innovation beyond the mere 
digitization and print reproduction of resources across the 
socioeconomic spectrum. The #GoOpen movement supports districts and 
States, in curating curricular materials that teachers can use or reuse 
or adopt based on the unique needs of their students or to suit their 
individual approaches to instruction. These teachers are afforded tools 
and professional learning resources from their district or State and 
from other districts and States so that they can capitalize on the 
opportunities provided by openly licensed and other digital resources. 
This is consistent with other policies, such as those reflected in the 
ESEA the authorization of appropriations for, among other professional 
development activities, training on the use of digital and openly 
sourced materials. Beyond individual classroom teachers, the #GoOpen 
initiative encourages administrators, technology directors, parents, 
and students themselves to work collaboratively in order to ensure the 
best opportunities for success. Through the #GoOpen movement, the 
Department actively supports partnerships between States, districts, 
and educators; promoting promising models of leadership; and aligning 
public and private efforts.
    The #GoOpen movement is one specific initiative of the Department, 
where the Department coordinates the community of practice for States, 
school districts, and educators that voluntarily use openly licensed 
educational materials. We believe that a consideration to move towards 
openly licensed textbooks must include an objective evaluation of 
relevance and quality, as well as cost. Those resource decisions are 
made at the State and local level. Our efforts through the #GoOpen 
movement encourage State and district leaders to give equal 
consideration to openly licensed resources in making the best possible 
decision for educators and students.
    This rule does not impose requirements for teachers or any other 
stakeholders to use openly licensed resources or encourage them to 
eschew publisher textbooks.
    Changes: None.
    Comment: Several commenters stated that the proposed rule would 
conflict with patent rules, stating that the existing technology 
transfer mechanism established at research institutions through current 
regulations is the most effective means of promoting innovation and 
commercialization of grant funded intellectual property. The commenters 
assert that requiring an open license on grant-funded materials would 
reduce rather than increase innovation and dissemination.
    These commenters note that the technology transfer infrastructure 
established as a result of the Bayh-Dole Act and other patent 
provisions has incentivized commercial entities to develop grant-funded 
works into successful products and services with greater reach. One 
commenter provided data from articles analyzing the impact of the Bayh-
Dole Act which state that federally funded research has resulted in 
nearly 10,000 patented products and enabled the launch of 4,200 new 
companies with a net product sales of $22 billion in 2013 alone. The 
commenter concluded from this data that the profits from these sales 
have incentivized partnerships with Department grantees that result in 
broad and relevant dissemination of products. Other commenters 
similarly note that public-private partnerships are critical to 
enabling sustainability of grant-funded products. In cases where 
grantees that have created computer software source code, that code 
itself often requires additional investment in product development, 
marketing, distribution, and support services for updates and upgrades. 
In cases where grant-funded research has resulted in creating 
interventions, these partnerships can allow continuous refinement and 
improvement of the intervention.
    Those commenters that warned the Department about the unintended 
effects of an open license on the incentive to innovate asserted that 
profit incentives are the engine of innovation. The commenters stated 
that, this rule would remove these incentives, which would stifle new 
ideas and result in fewer innovations. Similarly, some commenters 
stated that commercialization was the only means by which intellectual 
property becomes widely distributed and that open licenses would 
irrevocably harm product dissemination for grant funded materials.
    Other commenters expressed concerns that the loss of profit 
incentives would cause stakeholders to pursue alternate, non-Federal 
funding, rather than Department grant funding.
    Discussion: The Department agrees with the commenters that 
commercialization is an important means of promoting innovation and can 
result in broad dissemination of patents and other types of 
intellectual property. Grantees that comply with the legal requirements 
to openly license grant funded copyrightable works identified in the 
rule may still wish to seek patent protection on any invention created 
with grant funds. To ensure clarity about the rule's application, we 
are revising the rule to provide that it would not apply in instances 
in 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. For example, the rule would not apply to a grantee 
or subgrantee in instances where the application of the rule would 
materially undermine the grantee's rights if the grantee or subgrantee 
had developed, or was in the process of developing, an invention that 
it wishes to patent.
    Alternatives to commercialization also exist that can promote 
innovation in the field of education, act as an efficient means of 
broad dissemination of educational research or resources, and help 
sustain innovations after grant

[[Page 7387]]

periods end. As shown elsewhere in this document, there have been many 
examples of the broad dissemination and innovations developed from 
high-quality openly licensed educational content.
    We again note that any derivative works created based upon grant 
deliverables using non-Department grant funds are not covered by this 
rule. Grantees may leverage works created under an open license to 
establish or maintain a relationship with a private entity for the 
purpose of commercialization.
    The Department appreciates the commenters' concerns that our 
stakeholders may eschew Department grants in favor of other funding 
without these requirements. Our competitive grant programs are intended 
to support equal access to high-quality education for all students. By 
allowing others to freely use, with minimal restrictions, the 
educational resources created with our funding, we are providing 
opportunities for the global community of stakeholders to pursue 
solutions to their challenges. As previously mentioned, commercial 
incentives are not the only drivers of innovation in the field of 
education; similarly, we do not believe economic motive to be the sole 
consideration for stakeholders to participate in our grant programs. We 
observe that after implementing their similar policy, the Department of 
Labor continued to require applicants to form public-private 
partnerships in numerous notices inviting applicants for competitive 
grants. Despite the requirement that grantees make copyrightable 
intellectual property available under a Creative Commons Attribution 
(CC BY) license, the many programs covered since the enactment of their 
regulation have received a large pool of applicants. We recognize, 
however, that there may be some situations where a grantee may have 
difficulty forming a partnership with a private entity to create a 
grant deliverable. We believe that such situations are best addressed 
on a case-by-case basis and are revising the final regulation to 
include this situation as an example of where the Secretary may 
consider it appropriate to grant an exception to the open licensing 
requirement.
    Changes: We have revised Sec.  3474.20(d)(1)(viii) to provide that 
the open licensing requirement does not apply to ``[g]rantees 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.'' We also have included in Sec.  3474.20(d)(1)(vii) examples of 
situations in which the Secretary may consider it appropriate to grant 
an individual exception to the open licensing requirement. One of these 
examples is the situation in which the grantee's compliance with the 
open licensing requirement would impede the grantee's or subgrantee's 
ability to form the required partnership to carry out the purpose of 
the grant. The other example is discussed later in this section.
    Comment: Commenters stated their concerns related to openly 
licensing research-based interventions resulting from the Department's 
research grants. These comments fall into three general categories. 
First, commenters noted that grantees often receive research funds to 
produce early prototype models or interventions that have not yet 
benefited from robust efficacy studies. Openly licensing these 
resources would allow the public to access them ahead of testing and 
could lead to adoption of ineffective or potentially harmful resources. 
Commenters noted that this would especially harm disadvantaged 
populations. Second, commenters stated that the interventions developed 
through research grants are complex to administer, often requiring 
expert training or technical support in order to maintain quality 
control and ensure valid outcomes. Commenters noted that quality could 
be diminished through uncontrolled adaptations or derivatives that 
deviate from the evidence base or context established by the original 
researchers. Similarly, commenters also stated that in some cases, 
individuals could deliberately ignore the original parameters or 
context established by the researchers and pursue inappropriate use. In 
all of these cases, the reputation of the researcher could be 
compromised and the effectiveness of the original resource dismissed.
    Third, many commenters noted that research institutions exercise 
good stewardship over grant resources and already employ a number of 
strategies to broadly disseminate their findings. Many commenters also 
provided examples of existing initiatives that result in broad 
dissemination of research-based interventions. Some of these examples 
included use of strong partnerships with a commercial partner to allow 
for continued refinements to the products, reinvestment into future 
research, and technical support for implementation, even after the end 
of the grant period. These commenters also note that many research 
institutions do not have the expertise or capacity to effectively scale 
interventions, and even if openly licensed resources were available, 
wide dissemination would not occur without these partnerships. 
Additionally, some commenters stated that the existing IES goal 
structure was the most effective model of ensuring research-based 
interventions are scaled and disseminated widely, and recommended that 
IES maintain this goal structure.
    Discussion: We appreciate the concern that many IES grantees and 
education researchers have expressed related to implementation of the 
rule. In general, we note that this rule is intended to apply across 
competitive grant programs, not only to IES grantees.
    We agree with commenters that rigorous efficacy testing is 
necessary to ensure high quality resources, including interventions, 
products, and assessments, benefit students. We note that in addition 
to the early prototype models or interventions themselves, any final 
versions of program support materials necessary to the use of the 
prototype model or intervention, including professional development and 
training materials, research findings, and documentation of the context 
and efficacy of the resources created with grant funds would also be 
made available through an open license. Additionally, any materials 
created as part of IES research grants would also include rigorous 
peer-reviewed scholarly publications that would be available through 
ERIC. The availability of these supporting materials will allow the 
public to readily discern which resources could be appropriately used 
and which resources have not yet reached maturity. In some cases, these 
materials will prescribe the appropriate context and correct 
implementation methodology of the resource. We believe that 
practitioners should not be denied access to materials because of the 
possibility that they will misunderstand or misuse them. By openly 
licensing the supporting materials, data, and other program support 
materials, grantees can ensure that practitioners have the tools 
necessary to understand, learn from, and replicate deliverables, and to 
consult with researchers as appropriate.
    In response to the commenters' concerns, we make three 
observations. First, even before product maturity, prototypes and early 
stage research, including supporting documentation, can greatly benefit 
other researchers, allowing them to also test and refine the resource, 
potentially creating prototypes for different applications. We believe

[[Page 7388]]

this will result in developing resources at a rapid speed and 
encouraging innovation in the educational research field. We note that 
although peer-reviewed scholarly publications are excepted from this 
rule, those publications that are supported by IES grant funds are 
subject to the requirements of the IES' Policy Regarding Public Access 
to Research. As noted earlier, the Department is exploring other 
administrative means for expanding the requirements currently followed 
by for IES grant-supported peer-reviewed scholarly publications to all 
Department grants. We believe that the combination of the open access 
to publications and data with the openly licensed resources will enable 
the community of education and scientific stakeholders to use the early 
research effectively and responsibly.
    Second, we share in the concerns related to the misapplication of 
scientific research and misuse of educational tools. Nevertheless, we 
note that these issues may occur regardless of whether the research or 
tools are under copyright or available through an open license. We also 
note that members of the public, policymakers, educational 
practitioners, and other stakeholders, often incorrectly attribute 
their assertions to researchers, resulting in loss of reputation to the 
researcher. We do not believe that the root cause of these unfortunate 
circumstances is the availability of resources through an open license. 
In fact, a machine-readable license format on digital resources may 
actually facilitate the discovery of the original research and 
underlying frameworks for implementation. We also note that separate 
from the IES Policy Regarding Public Access to Research, many research 
institutions have already established faculty open access policies that 
enable public access to research and data.\4\
---------------------------------------------------------------------------

    \4\ http://sparcopen.org/coapi-members/.
---------------------------------------------------------------------------

    Third, we acknowledge that in many cases, research entities lack 
expertise and capacity to scale the adoption of new resources and that 
in many cases, private entities play an important role in the iterative 
improvement of resources, often contributing funding in the process. 
For the purposes of this rule, the Department believes that the primary 
barrier to broad dissemination is not the lack of capacity; rather it 
is the lack of access to resources. Even if one research entity does 
not have the capacity to scale a resource, an open license enables 
other entities, some with greater expertise and resources, to 
disseminate them. We note that this regulation does not cover 
derivative works, funded privately through these partnerships.
    Finally, we note that this regulation does not alter the structure 
or statutory requirements for any existing grant program, including the 
goal structure of IES-funded grant programs. As discussed elsewhere in 
this regulation, peer-reviewed scholarly publications that arise from 
scientific research funded, either fully or partially, from grants 
awarded by the Department are excepted from this regulation. This plan 
provides access both to research findings and the scientific data, 
encouraging researchers, practitioners, and the general public to test 
and improve findings and resources and otherwise enhance value for all 
stakeholders.
    Changes: None.

Additional Questions

    In the NPRM we posed five questions that requested comments on 
whether the proposed regulations should include certain additional 
implementation requirements. The responses provided to the five 
questions are summarized below.
    Question 1: Should the Department require that copyrightable works 
be openly licensed prior to the end of the grant period as opposed to 
after the grant period is over? If yes, what impact would this have on 
the quality of the final product?
    Comments: Commenters that responded to this question were divided 
over whether it would be best to require that the open licenses be 
applied prior to the end of the grant or after the grant is over. In 
general, all commenters that opposed the requirements of the NPRM did 
not believe that open licenses should be applied prior to the end of 
the grant period. These commenters noted that this would result in a 
number of negative public consequences. For example, prior to the end 
of the grant period, products or interventions may not yet be complete 
or useful and may harm the public if disseminated too early or without 
proper training on their implementation. In addition, openly licensing 
and distributing non-final versions could create confusion for the 
public about which version to adopt or hinder the peer review process.
    Conversely, some commenters stated that applying open licenses and 
distributing materials prior to completion will give opportunity for 
more feedback and review and give the grantee additional time to make 
adjustments or refinements prior to the end of the grant period leading 
to a better final product. In addition, by making their work known, 
duplicative efforts can be avoided.
    Other commenters stated that the decision of whether the license is 
applied prior to the end of the grant period should be made based on 
the goals and circumstances of the grant program.
    Discussion: We considered the variety of viewpoints reflected in 
the comments and the variety of grant programs funded by the 
Department. We believe that it would be difficult to prescribe a single 
timing requirement appropriate for all programs. Depending on the goals 
of the particular grant program or the individual project proposal, the 
grantee may elect to openly license the intellectual property created 
through the grant before the grant period has ended, though that is not 
a requirement. The final rule does not specify whether copyrightable 
grant deliverables should be openly licensed prior to the end of the 
grant period or after the grant period is over, thereby leaving it to 
each grant program to decide.
    Changes: None.
    Question 2: Should the Department include a requirement that 
grantees distribute copyrightable works created under a direct 
competitive grant program? If yes, what suggestions do you have on how 
the Department should implement such a requirement?
    Comments: Commenters were divided in their response to the proposed 
requirement for grantees to distribute Department-funded works. Many 
commenters supported an additional requirement to distribute 
Department-funded works. Of these, some commenters proposed that the 
Department be nonspecific about the method of distribution. One 
commenter expressed concerns that specificity would drive away 
institutions currently implementing other distribution methods. Others 
suggested more specific methods, including the use of a CC BY license 
or dissemination of works through online platforms. Some of these 
commenters accompanied their suggestions with proposals for additional 
Federal requirements, such as a sustainability plan in the grant 
application or a final report containing a link to the location of the 
work in an online repository.
    Other commenters disagreed with requiring distribution by grantees. 
These commenters suggested that the responsibility of distribution 
resides with the Department, such as through the use of the ERIC, an 
online library of education research and information, sponsored by IES. 
Similarly, others suggested partnership with existing repositories or 
the creation of another

[[Page 7389]]

online repository. Commenters also noted that the Department should 
make funding or other resources available to grantees if it establishes 
distribution requirements or allow grantees to monetize modifications 
to the grant-funded materials.
    Discussion: We note the variety of suggestions that reflect the 
experience of the diversity of our grant recipients. In reading the 
suggestions, we believe that the specific mode of dissemination enabled 
by open licenses should remain at the discretion of the program in 
order to be appropriate to the needs of the grantees and align with the 
statutory goals of that program. However, we believe that our goals 
would be best achieved by including a requirement that grantees provide 
information about the resources that have been created with support of 
Department grant funds. As a result, we have added a requirement for 
grantees to submit a plan for dissemination of their openly licensed 
resources. We would encourage grantees to provide links to public Web 
sites of their works if that is appropriate based on the nature of 
their resource. We note that for a grantee that does not have its own 
Web site, there are a number of free methods to distribute digital 
openly licensed materials through publicly available Web sites, 
learning resource, and metadata repositories.
    We also recognize that a grantee may develop a robust dissemination 
plan that could demonstrate meaningful dissemination that is equivalent 
to or greater than the dissemination likely to be achieved by 
compliance with the open licensing requirements. Accordingly, we are 
revising the regulation to provide this situation as an example of a 
scenario in which the Secretary would consider granting an exception to 
the open licensing requirement.
    Changes: We have added final Sec.  3474.20(c) to state that a 
grantee or subgrantee that is awarded competitive grant funds must have 
a plan to disseminate the openly licensed grant deliverables that were 
created in whole, or in part, with Department grant funds. In final 
Sec.  3474.20(d)(1)(vii), we have also provided an example of a basis 
for providing an exception under 2 CFR 3474.5 and 200.102 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 final rule.
    Question 3: What further activities would increase public knowledge 
about the materials and resources that are created using the 
Department's grant funds and broaden their dissemination?
    Comments: The Department thanks commenters for the numerous 
recommendations regarding activities that would broaden the 
dissemination of materials and resources created using the Department's 
grant funds. Several commenters suggested the adoption of an existing 
online, open platform, such as OER Commons, GitHub, and OpenStax CNX. 
Others stated the need to create and enforce an entirely new repository 
of works and related reports or an index containing links to pages 
where the specific resource can be located.
    Aside from online platforms, commenters suggested the launch of a 
large advertising campaign of Department-funded works including the use 
of media such as emails, newsletters, and speeches where the Department 
highlights openly licensed materials and resources. Finally, a few 
commenters stated the need for the Department to communicate with 
grantees directly to discuss what exactly open licensing entails and 
how dissemination practices can be funded.
    Discussion: We appreciate the variety of suggestions provided by 
commenters. In addition, we appreciate the concern for public 
awareness. We will consider these recommendations as we work to 
increase the public's knowledge of materials that are openly licensed 
pursuant to this final rule. It is our intention to also provide robust 
training to grantees on how to satisfy this requirement. We note that 
at this time, the Department does not have the funding to support the 
development of an online repository solution.
    Changes: None.
    Question 4: What technical assistance should the Department provide 
to grantees to promote broad dissemination of their grant-funded 
intellectual property?
    Comments: Commenters suggested that the Department provide guidance 
for grantees for a variety of topics, such as licensing standards, 
metadata, formatting, information on how to access openly licensed 
resources to incorporate them into original works, and creating 
accessible materials. The commenters suggested that this guidance be 
provided through formal workshops and training. Other commenters 
suggested that the Department promote dissemination by creating a user-
friendly central repository of works and related reports, developing a 
directory of funded materials, or establishing a funding mechanism 
specific to distribution.
    One commenter suggested that grantees should continue to work with 
technology transfer offices at their institutions.
    Discussion: We thank the commenters for the numerous suggestions 
provided. The Department has taken these into account and will 
incorporate these into future training for grant recipients. At this 
time, we will not be providing funding for the creation of a central 
repository of works or reports, nor is there any additional funding 
available specific to distribution.
    Changes: None.
    Question 5: What experiences do you have implementing requirements 
of open licensing policy with other Federal agencies? Please share your 
experiences with these different approaches, including lessons learned 
and recommendations that might be related to this document.
    Comments: We thank the commenters who responded to this question 
and had a wide breadth of experience implementing other open licensing 
requirements. Only one commenter had direct experience as a Department 
grantee. Though open licensing was not a requirement of their grant 
project, the grantee elected to use an open license to ensure that 
grant-funded resources would be made available to as many individuals 
as possible. This grantee reported positive experience running a grant-
funded education center that provides services to individuals with 
disabilities. In addition to distribution, the grantee reported that 
with equal availability as a foundation, ``openness'' enabled 
cooperation between multiple organizations to address the common 
challenge of STEM accessibility. The grantee made several 
recommendations, including use of Creative Commons licenses, that 
materials be released under an open license at time of completion or 
wide distribution during the grant period, that materials be made 
available on the internet without obstructions, and that metadata be 
listed on a resource site such as the Learning Registry. The grantee 
also recommended that the Department host all grant funded materials on 
a resource site.
    A few commenters had direct experience implementing open licensing 
policies of other Federal agencies, including the Departments of Labor 
and the National Science Foundation. Based on their experience these 
commenters recommended that the Department direct grantees to use 
licenses that are interoperable that allow a broad range of reuse, 
including specifically, Creative Commons licenses. One commenter had 
experience leading open repository

[[Page 7390]]

development and technical assistance on numerous projects including 
establishing the Department of Labor's repository for the TAACCCT grant 
program, the National Science Foundation National Digital Library of 
Science, and the California Affordable Learning Solutions initiative. 
This commenter noted the importance of providing an online library of 
all grant-funded resources to enable quality and continuous 
improvement. In addition, the commenter noted the importance of 
providing support to institutional leaders in developing and 
implementing a change management strategy for their institution to 
locally design and implement culturally aligned, locally supported, and 
collectively valued ecosystems of intellectual property strategies, 
recognition, and incentives for openly sharing intellectual property, 
and an institutional mission for improving society through quality 
education.
    One commenter stated that they did not know of any other Federal 
funding agencies that would make this regulation a grant requirement, 
as it would require forfeiture of intellectual property.
    Discussion: We thank these commenters for sharing their 
experiences. All of the suggestions have been discussed elsewhere in 
this regulation, except for the suggestion to list metadata on a 
resource site such as Learning Registry. The Department believes that 
Learning Registry is a valuable metadata repository for open 
educational resources. Grantees of the Department are encouraged to 
consider using Learning Registry or other public, freely available 
platforms to enable sharing of resources.
    In reviewing these comments, we noted that our proposed rule did 
not account for situations in which a grant deliverable is jointly 
funded by both the Department and another Federal agency where the 
other Federal agency does not require the open licensing of its grant 
deliverables for that program. In these instances, we recognize that 
complying with the Department's open licensing requirement may cause 
confusion regarding a grantee's ability to comply with the requirements 
of that other Federal agency regarding the grant deliverable, so we are 
revising the regulation to provide that the rule would not apply to 
these types of grant deliverables.
    Changes: We have revised Sec.  3474.30(d)(1)(iii) to provide that 
the open licensing requirement does not apply to 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.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (OMB). Section 3(f) of Executive Order 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action will have an annual effect on the 
economy of more than $100 million because of the benefits that will be 
realized as a result of the dissemination of openly licensed resources 
required under this rule. Although the costs associated with this rule 
are relatively low, we believe the benefits from the resources that 
will be readily available to the public through broad dissemination 
will reach more than $100 million. We explain these costs and benefits 
in more detail in the Costs and Benefits section of this Regulatory 
Impact Analysis. Therefore, this final action is ``economically 
significant'' and subject to review by OMB under section 3(f)(1) of 
Executive Order 12866. We have also reviewed these regulations under 
Executive Order 13563, which supplements and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits would justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that maximize net benefits. Based on the analysis that 
follows, the Department believes that these final regulations are 
consistent with the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Need for Regulatory Action, Potential Impacts, and Costs and Benefits

Need for Regulatory Action

    Grantees under the Department's competitive grant programs create a 
number of copyrightable grant deliverables using Department grant funds 
that may have significant benefit for students, parents, teachers, 
school districts, States, institutions of higher education, and the 
public overall. These copyrightable works are wide ranging in nature 
and include instructional materials, personalized learning delivery 
systems, assessment systems,

[[Page 7391]]

language tools, and teacher professional development training modules, 
just to name a few. The Department's grantees creating these works 
include SEAs, LEAs, IHEs, and non-profit organizations and while the 
works are created under a specific grant program and therefore may 
target a specific school or group of students, the resources are such 
that other education stakeholders would significantly benefit from 
being able to readily and freely access them, use them, and in some 
cases, modify them to address their needs and goals.
    As we note earlier, wide dissemination of these types of 
copyrightable works has not occurred under the Department's current 
regulations. We found very few instances in the last decade where 
program offices received a request to make grant-funded resources 
available under the Federal purpose license. However, we do have 
evidence of the impacts of open licensing in those competitive grant 
programs where open licensing was required or where the grantee 
voluntarily openly licensed its copyrightable works.
    For example, the Department's First in the World (FITW) program has 
an existing open licensing requirement and thus provides a basis for 
estimating the potential benefit of these final regulations. In FY 
2015, the Department awarded approximately $60 million in FITW funds to 
18 institutions of higher education, research organizations, and 
education agencies. This total included 16 FITW development grants 
intended to seed and evaluate early stage innovations, where new 
intellectual property would be created, and two validation grants to 
test at a broad scale existing interventions supported by significant 
evidence.
    We estimate that the 16 development grantees will produce at least 
1,400 new resources that would be openly licensed, approximately 90 
resources per grantee. This estimate is based on work that the FY 2015 
grantees project they will do over a four-year period and we generally 
anticipate that most resources would be available for dissemination and 
licensing in the last two years of the grant period. We also note that 
the total number of resources to be created across the 16 grantees 
varies widely as a result of the different activities and innovative 
approaches proposed in their projects. For example, CSU-Los Angeles is 
proposing to redesign every first year science course, resulting in the 
largest estimate of resources created, while Delaware State is 
proposing to develop an analytics framework and tool for matching 
student interests to programs, which we believe would result in the 
creation of fewer resources. These two projects would impact 
approximately the same number of students, but one approach involves 
the creation of a large number of resources while another invests 
resources towards creation of a platform tool and a smaller number of 
resources associated with that tool.
    Moreover, we believe that our estimates for the FITW grantees are 
likely to be higher than what we would expect for most other Department 
competitive grant programs, including those at the higher education 
level and those focused on elementary and secondary education. For 
example, in the higher education space, the Federal TRIO programs, 
which accounted for nearly half of all competitive awards to IHEs in FY 
2015, have a more narrowly focused statutory purpose to provide basic 
services (e.g., tutoring, counseling, mentoring) to needy students 
using strategies and generally are less likely to produce copyrightable 
resources.
    On the other hand, the Department also funds a number of activities 
that, under the final regulations, would be likely to produce 
significantly higher numbers of copyrightable resources than FITW 
grantees. For example, our National Language Resource Centers (LRC) 
program funds IHEs to research and develop resources for Less Commonly 
Taught Languages (LCTL), http://www.nflrc.org/lrc_broc_full.pdf. In the 
FY 2014-FY 2017 grant cycle, we awarded approximately $2.8 million to 
16 IHEs to support National Language Resource Centers (LRC) for 
research and development of resources for LCTL. There was no 
requirement for the grantees to openly license their resources, but one 
grantee did so of its own volition. Specifically, the University of 
Texas at Austin received approximately $200,000 in FY 2015 to fund 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. The 
Department estimates that there are approximately 500 educational 
resources, including curricula, lessons, worksheets, assessments, 
textbooks, videos, podcasts, research studies, open apps for student 
learning, and interactive platform, materials, openly licensed on the 
COERLL Web site (https://www.coerll.utexas.edu/coerll/).
    Based on the experience with UT-Austin, we believe that if an open 
license requirement were in place at the time these awards were made to 
the 15 other grantees, we could assume that 15 times more language 
learning materials would be made available, or an additional 7,500 
pieces of openly licensed content across the different language areas. 
Moreover, the enhanced availability of these materials potentially 
would have increased the impact of each of the individual centers by 
encouraging and supporting vibrant communities of practice focused on 
language instruction and learning at institutions that do not have the 
resources themselves. For example, this would have enabled discovery 
and use of resources created by the University of Indiana National 
African Resource Center, whose lack of broad dissemination leaves the 
public without information about what resources are available, where to 
access any materials, or how to seek permission to use any resources 
found. Since this is the only African language program in this cohort, 
the result is also the loss of resources for this entire language 
family.

Analysis of Potential Impacts

    In FY 2016, the Department made new and continuation awards under 
roughly 110 unique discretionary competitive and non-competitive grant 
programs that totaled $44.155 billion (excluding Pell). Of this total 
we estimate that 66 programs would be subject to the open licensing 
requirements of the final regulations. In addition to the Ready to 
Learn program, of the 43 programs (roughly $39.932 billion in FY 2016) 
that we estimate would be exempt from open licensing, approximately 30 
are non-competitive programs that allocate funds on the basis of a 
formula, and approximately 13 support competitive grants in which 
program funds are only used to support activities that clearly fit 
within one or more or the categorical exemptions in this rule (e.g., 
approximately 7 are competitive programs that only support fellowships 
or scholarship awards to individuals, and the other 6 provide support 
for general operating expenses).
    Within the group of 66 competitive grant programs (which received 
$4.223 billion in FY 2016) subject to the rule, not all grantees will 
produce intellectual property. For example, in the IDEA Personnel 
Development to Improve Services and Results for Children with 
Disabilities Program, many cohorts of grantees do not produce 
intellectual property at all and, therefore, this rule would not apply 
to those specific grantee cohorts. We note that the required activities 
in grant competitions often change over time, so the impact of

[[Page 7392]]

the rule may vary from one competition and cohort to the next.
    In addition, in some cases, only a portion of activities and 
funding would result in the creation of resources that would be 
required to be openly licensed under the final regulations. For 
example, in the case of IES's Education Research, Development, and 
Dissemination program, grants are awarded competitively to support 
research programs that both create interventions and resources and 
peer-reviewed publications that arise from scientific research 
(receiving an exception). The Department also has developed an agency-
level exceptions process where any program could ultimately be granted 
either partial or complete exception to the requirements of the final 
regulations. For all of these reasons, we estimate that the potential 
impact of these final regulations will be limited to a relatively small 
but important subset of the programs and projects funded by the 
Department in any given year. The final regulations will ensure that 
those programs and projects that do produce copyrightable educational 
materials and resources, including materials and resources proven 
effective through rigorous evaluation, make such resources freely and 
widely available to the public for the potential benefit of students, 
teachers, and schools across the nation.

Potential Costs and Benefits

    The final regulations will not impose significant costs on entities 
that receive assistance through the Department's competitive grant 
programs. We note that annual variation in the total volume of new and 
continuing discretionary grant awards, as well as in the purposes and 
priorities associated with such grants, limits the precision of our 
estimates, but we estimate that the upper bound total cost of these 
regulations, over ten years, will be approximately $22.6 million in 
labor fees, at an annualized rate of $3.2 million per year, with no 
additional costs to support technology infrastructure. This estimate 
assumes a discount rate of three to seven percent.

Analysis of Technology Infrastructure Costs

    While the benefits of the final regulations depend on the broad, 
accessible dissemination of copyrightable educational materials and 
resources, we estimate that such dissemination will result in no 
additional technology infrastructure costs to grantees subject to the 
open licensing requirements, for two reasons. First, the near-universal 
adoption of digital tools and devices means that grantees will be 
creating and refining grant deliverables in digital formats that 
facilitate dissemination at no additional technology cost. Second, 
grantees may readily access and use a number of free methods to 
distribute digital openly licensed materials, including publicly 
available Web sites, content, or metadata repositories at no cost. 
Thus, we expect that grantees generally will be able to meet the 
dissemination requirements of the final regulations without incurring 
additional technology infrastructure costs.

Analysis of Technology Labor Costs

    Even though there will generally be no additional costs associated 
with technology infrastructure, we estimate that over a period of 10 
years there may be a likely high-end labor cost of $22.6 million. This 
cost represents an upper bound estimate of the labor necessary to 
disseminate copyrightable products expected to be generated by all new 
ED grantees over a period of 10 years. To develop this upper bound 
estimate, we started by analyzing the volume of ED grantees that could 
potentially be impacted by the rule. In 2016, the most recent year 
preceding this final rule, the Department made approximately 5,470 new 
competitive grant awards. We know not all of these grantees will 
generate copyrightable products requiring dissemination under this 
final rule, so for purposes of this upper bound estimate we estimate 
that the Department will continue to make 5,470 new competitive grants 
each year, and that 30 percent of these awards will produce 
copyrightable content and consequently will be affected by the final 
rule. Further, we assume that for each year the rule is in effect after 
year one, every cohort of continuation awards will also be affected by 
the final rule. So, based on past data, we estimate that in the first 
year the final rule takes effect 1,641 grants will generate 
copyrightable products (30 percent of 5,470 total new grant awards 
made), and that by year four a total of 6,564 new and continuation 
awards would be impacted by the rule. Likewise, from years 4 through 10 
this number plateaus and remains stable at 6,564.
    Next, consistent with the estimates in the Need for Regulatory 
Action section, we estimate that each grantee will generate an average 
of approximately 90 copyrightable products requiring dissemination over 
the duration of their grant award (typically ED grantees have 4 or 5 
year grant performance periods). As stated previously, we know that 
many non-exempt programs have a narrowly focused statutory purpose that 
often involves provision of services (e.g., tutoring, counseling, 
mentoring), and that grantees under such programs are much less likely 
to produce copyrightable resources. But, again, for purposes of 
developing an upper bound estimate we analyzed a handful of grantees 
for which dissemination of products or content is a core purpose of 
their grant. Since dissemination is a core activity for grantees 
included in this sample, we know these grantees are likely to generate 
significantly more products requiring dissemination each year than 
grantees focusing on other activities such as service provision. 
Further, since it generally takes grantees some time to scale up their 
projects we assume, taking into account the past production rate of 
grantees, the following ``outlay'' rate (over an assumed project length 
of 4 years) for all grantees affected by the rule: Year One 5 
copyrightable products produced and disseminated; Year Two 15 
copyrightable products produced and disseminated; Year Three 20 
copyrightable products produced and disseminated; and Year Four 50 
copyrightable products produced and disseminated.
    Assuming a total of 1,641 new competitive grantees would generate 
copyrightable product during the first year the rule is in effect, with 
each new grantee producing 5 total deliverables in the first year, the 
overall volume of resources requiring dissemination would be 8,205 
(1,641 grantees producing an average of 5 copyrightable products each). 
In the second year, with new grantees expected to produce 15 total 
deliverables on average, the overall volume of copyrightable products 
would be 49,230 (3,282 grantees producing an average of 15 
copyrightable products). In year three the overall volume would 
increase to 98,460 (4,923 grantees producing and average of 20 
copyrightable products), and by year 4 this number would be 328,200 
(6,564 grantees producing an average of 50 copyrightable products).
    Finally, we estimate the likely time and salary that would be 
required for individual grantees to complete these requirements. As an 
example of the specific steps that might be necessary for an individual 
grantee to complete dissemination requirements envisioned in the final 
rule, the grantee would:
    1. Use the Creative Commons License tool to select and apply the 
symbol to the work and generate the machine readable code and affix to 
the work (http://www.creativecommons.org/chooser)
    2. Upload the resource and metadata, including the name, 
description,

[[Page 7393]]

license, publisher, and URL of the resource, to a shared learning 
resource repository or educator Web site:
    We estimate the time for completion of Steps 1 and 2 to be 
approximately 30 minutes total per resource. We also recognize that the 
actual time for completion may be substantially shorter in the case of 
automated or bulk resource uploads. Assuming a pay rate of $15/hour for 
data entry,\5\ new grantees generating 5 products in the first year 
would require approximately 2.5 hours per year in total labor to 
complete these steps at an annualized cost of approximately $38 per 
grantee. By year four of implementation these estimates would plateau 
at approximately 45 hours required per year in total labor costs at an 
annualized cost of approximately $675 per grantee.
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    \5\ Unless otherwise noted, all hourly wages are non-loaded wage 
rates and are based on median hourly earnings as reported in the May 
2014 National Occupational Employment and Wage Estimates from the 
Bureau of Labor Statistics (see www.bls.gov/oes/current/999201.htm).
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    Taking into account these assumptions, we estimate that a 
reasonable upper bound estimate of the maximum likely labor costs for 
all expected grantees to implement this final rule over a period of 10 
years to be $22.6 million, at an average total annual cost of $2.26 
million.

Other Potential Costs

    Under current regulations, title to intellectual property acquired 
under Department grant funds, including copyright, vests in the 
grantee. With respect to copyrighted works, under 2 CFR 200.315(b), the 
Department also reserves a royalty-free, non-exclusive, and irrevocable 
right to reproduce, publish, or otherwise use for Federal purposes, and 
to authorize others to do so. No further action is necessary to 
designate these rights. Grantees may establish terms and conditions 
that permit use of their works to any member of the public, for each 
instance of use or for each created work. That the Department does not 
frequently exercise its Federal purpose license may create the false 
impression that any grantee can use the copyrighted works it creates 
with Federal grant funds for revenue generating purposes without any 
concern that third parties will have free access to those materials for 
Federal purposes.
    This final rule requires that grantees openly license copyrightable 
grant deliverables created with Department funds to enable the public 
to use the work without restriction, so long as the public provides 
attribution to the copyright holder. While the type of license will 
differ depending on the type of work created, applying an open license 
to a grant product typically involves the addition of a brief license 
identification statement or insertion of a license symbol or device. 
This could occur following the development of the product, at the same 
time that the disclaimer currently required under 34 CFR 75.620 is 
applied.
    In this context, the regulations could reduce commercial incentives 
for an eligible entity to apply to participate in a competitive grant 
program. For example, we believe that under some competitive grant 
programs, grant recipients may produce materials that will be 
subsequently sold or licensed to third parties, such as publishing 
companies or others in the field. Although an open license does not 
preclude the grantee or any individual from developing commercial 
products and derivatives from the grant funded material, it could 
diminish certain competitive advantages that these grantees currently 
possess as the copyright holder. In addition, publishers and other 
third parties may incur loss of revenue since their commercial product 
will potentially compete with freely available versions of a similar 
product or may hesitate to enter into licensing agreements with 
grantees.
    In response to these concerns, we note that derivative works built 
upon the Department funded copyrightable works using non-Department 
funds are considered new works to the extent of the modifications and 
are not covered by this regulation. As long as the grantee or 
subgrantee does not elect an open license with a noncommercial use 
requirement, using non-Department funds, any other entity can improve 
upon the grant-funded copyrightable works resulting in a derivative 
work that can be commercialized for financial gain or as part of a 
sustainability plan. For purposes of clarity, noncommercial licenses 
would not limit the ability of grantees to commercialize their own 
derivative works. It is the underlying Department grant-funded 
copyrightable works that will be freely available to the public. This 
allows multiple entities to enter into a commercial market for 
derivative works, potentially resulting in multiple derivative 
products. In the event that a grantee or subgrantee selects an open 
license with a noncommercial use requirement, members of the public 
would likely need to contact the grantee or subgrantee directly in 
order to obtain broader usage rights.
    Nothing in this regulation prevents the grantee itself from 
entering this marketplace, or from entering into private, commercial 
relationships with select commercial entities to distribute derivative 
works based upon the openly licensed works. In this case, the grantee's 
expertise as the original creator could allow it to retain market 
leverage, if its commercial product demonstrated market value that 
outcompeted other commercial derivatives. We believe that the grantee 
may be best positioned to create derivative works with the most 
economic value since it best understands both the present utility and 
future potential of the product and can anticipate the enhancements 
that would need to be taken to address unmet market needs.
    Third, based on the Department's past grant making experiences, 
relatively few grantees have developed and marketed copyrighted works 
paid for with Department funds. In those cases, the open license 
requirement would not preclude their ability to continuously iterate 
and improve their product through copyrighted commercial derivatives.
    We further note that in the competitions in which we required that 
grant-funded copyrightable works be openly licensed, it was not our 
experience that the requirement deterred grantees from applying or 
attracting partners. The two rounds of FITW grant competitions 
attracted over 500 applications in FY 2014 for 24 awards and over 300 
applicants in FY 2015 for 18 awards. We have not heard from grantees 
that attracting partners has been or would be problematic. In addition, 
one of the considerations for granting a program level exception will 
be whether the open licensing requirement would impede the grantee's 
ability to form the required partnerships necessary to carry out the 
purpose of the grant. Thus, we believe we can address this concern 
through our exceptions process.

Benefits

    We believe that the benefits of the open licensing requirement in 
the education field will significantly outweigh the costs our grantees 
might incur. The education sector has had considerable recent 
experience with successful implementation of open licenses as a 
mechanism that enables dissemination, broad access, and use. Open 
licenses have enabled the Department's own grantees, including the New 
York State Department of Education (NYSED) to have broad reaching 
impacts and enabled collaboration that has resulted in significant cost 
savings for SEAs, LEAs,

[[Page 7394]]

and other stakeholders. In the case of NYSED, in 2010, the Department 
awarded New York State Department of Education (NYSED) approximately 
$700 million in funding through the Race to the Top (RTT) grant 
program. NYSED invested $12.9 million of that award in the creation of 
openly licensed curriculum in math and English Language Arts called 
``EngageNY'' that was made freely available to the public under a 
Creative Commons Non-Commercial Share-Alike (CC-SA-NC) license.\6\ The 
EngageNY curriculum created by NYSED has been implemented statewide in 
New York. Because this curriculum is openly licensed, California, 
Louisiana, and Washington have adapted and used these materials 
statewide as a foundation for their standards aligned curriculum. 
Additionally, teachers at schools across the nation have been freely 
accessing, using, and adapting the EngageNY content.\7\
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    \6\ https://creativecommons.org/licenses/by-nc-sa/3.0/.
    \7\ http://www.rand.org/content/dam/rand/pubs/research_reports/RR1500/RR1529/RAND_RR1529.pdf.
---------------------------------------------------------------------------

    The open license has also enabled other organizations to create 
derivative works that enhance the original curriculum. For example, 
UnboundED, a non-profit educational organization, has adapted the 
original materials created by the grant, developed supplemental digital 
content, English language learner support, and is offering curated sets 
of these materials to the public at no cost. In addition to the 
content, UnboundED has developed new teacher professional development 
materials and offers paid teacher training on using these and other 
open resources. Thus, the open license has enabled a single investment 
to result in broad, national dissemination and stimulated a derivative 
marketplace of services and supplemental content. Since the EngageNY 
content is freely available, other teachers, SEAs, and LEAs do not have 
to duplicate investments in curricula in these same content areas, 
resulting in a more efficient use of resources.
    In addition, between 2012 and 2015, the Office of Career Technical 
and Adult Education (OCTAE) invested national activities funds in 
accelerating the teaching and learning of STEM competencies through 
high-quality OERs and high-quality adult education instruction of STEM 
by funding adult educators who located, used, evaluated, and shared 
science and math OER that are appropriate for adult education classes. 
The project also developed online professional development courses for 
teachers on how to use OER for math and science instruction in their 
adult education classrooms that are freely available in multiple 
repositories.\8\ Adult educators, working in Teacher User Groups 
located, used, evaluated, and shared science and math OERs that are 
appropriate for adult education classes. The reviews are posted within 
www.OERCommons.org, part of a newly formed ``adult education'' category 
with over 2,400 resources that can now be searched and accessed freely 
through this repository. The project also developed online professional 
development courses for teachers on how to use OER that are freely 
available in multiple national repositories for math and science 
instruction in their adult education classrooms. The Department's 
investment of funding has resulted in a valuable resource that is 
searchable on public repositories and widely available to members of 
the public that would not have been otherwise reached by the 
Department's National Activity Activities funds.
---------------------------------------------------------------------------

    \8\ https://lincs.ed.gov/programs/oerstem and http://www2.ed.gov/rschstat/eval/sectech/factsheet/open-education-resources-stem-teaching.html https://lincs.ed.gov/programs/oerstem 
and http://www2.ed.gov/rschstat/eval/sectech/factsheet/open-education-resources-stem-teaching.html.
---------------------------------------------------------------------------

    Under the National Language Resource Centers (LRC) grant program, 
the Department awarded funds to IHEs for research and development of 
resources for Less Commonly Taught Languages (LCTL). Though there was 
no specific requirement for the grantees to openly license their 
resources, one grantee did choose to do so. As previously discussed, 
the University of Texas at Austin created 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, remixing, and 
repurposing of these language resources, and open research. There are 
hundreds of different and diverse open materials, including curricula, 
lessons, worksheets, assessments, textbooks, videos, podcasts, research 
studies, open apps for student learning, and interactive platform, 
materials openly licensed on their Web site available under an open 
license and publically available on their Web site. These resources 
include language learning materials such as OER for K'ichee' Maya, an 
indigenous language spoken in Guatemala; software that allows a group 
of users to annotate the same text together; a series of native speaker 
surveys; a teacher professional development digital badge system; 
research on the perception and use of foreign language OER; and a Web 
site supporting a community of practice on Open Education in language 
learning.
    Finally, the Department's FITW grant program has required grantees 
to openly license intellectual property.\9\ The online remediation tool 
created by the Southern New Hampshire University under this grant 
program will help underprepared, underrepresented, and low-income 
working adults obtain a postsecondary credential and reduce the time to 
degree completion. Under the terms of the grant, the open license will 
allow any other IHE or adult education provider to use this tool to 
serve the working adults in its service areas, without incurring costs 
or duplicating efforts of development.
---------------------------------------------------------------------------

    \9\ http://www2.ed.gov/programs/fitw/index.html and https://www.federalregister.gov/d/2014-11463/p-188.
---------------------------------------------------------------------------

    Elsewhere in the Federal government, as noted previously, the 
Department of Labor was the earliest user of open copyright licenses. 
The Department of Labor first piloted the open license requirement in 
FY 2011, through the $2 billion TAACCCT grant program, which required 
all new resources created with TAACCCT funding to be made available 
under CC BY license.\10\ With this requirement, TAACCCT grantees have 
created thousands of openly licensed learning resources that have been 
downloaded and reused hundreds of thousands of times, including 
courses, curriculum, modules, and assessments that are freely available 
at https://www.skillscommons.org.\11\ The open resources have enabled 
partnerships and collaborations between colleges, with other Federal 
agencies, State agencies, and even international education systems and 
expanded the investment beyond one single grantee to a broad range of 
stakeholders. For example, an openly licensed basic computer skills 
training online course (BITS) \12\ created by the Wisconsin Technical 
College system is being used by the Ohio Workforce Investment board to 
provide computer training to adults at 89 American Job Centers 
statewide, has been used across the 15 community colleges in the Iowa 
Community College System, and is being customized by the Technical 
College System of Georgia. Competency based training along aerospace 
and energy career pathways developed by

[[Page 7395]]

consortia of community colleges in Washington State and Arizona and 
major employers and industry partners were adapted through Rutas 
(Routes), a USAID-funded workforce development program operating along 
Mexico's northern border. Relying on the open license, USAID grantees 
were able to translate the curricula into Spanish, rather than using 
funds to create their own materials from scratch, and created 
additional educational pathways suitable for the Mexican technical high 
school system.\13\ In each of these examples, an open license allowed 
uses that would have otherwise involved separate and duplicative 
investments, either by the same or separate Federal agency, by a State 
agency, or through other public funding, and has resulted in 
significant discount to the public. Because of these early successes, 
the Department of Labor expanded the requirement across the agency 
through regulation \14\ and is the first Federal Agency to require 
grantees to apply Creative Commons Attribution licenses to all grant 
funded materials.
---------------------------------------------------------------------------

    \10\ https://creativecommons.org/licenses/by/4.0.
    \11\ https://wdr.doleta.gov/directives/corr_doc.cfm?docn=4109.
    \12\https://www.skillscommons.org/handle/taaccct/6799.
    \13\ http://blogs.iadb.org/energia_es/2016/02/17/how-to-build-a-renewable-energy-future-in-mexico/; http://www.iyfnet.org/blog/poised-take-mexican-youth-prepare-aerospace-careers.
    \14\www.federalregister.gov/articles/2015/12/30/2016-32725/uniform-administrative-requirements-cost-principles-and-audit-requirements-for-federal-awards.
---------------------------------------------------------------------------

    Privately funded openly licensed projects also have a long history 
of creating educational resources with significant benefit to the 
public. For example, organizations such as Rice University's OpenStax 
and California State University's Multimedia Educational Resource for 
Learning and Online Teaching (MERLOT) \15\ have over 20 years of 
experience creating and curating OER and developing national 
communities of practice for teaching and learning with digital 
resources. In public comments submitted by OpenStax, it was noted that 
its openly licensed college textbooks, first introduced in 2012, are 
currently used by more than 650,000 students in 1,600 educational 
institutions in the United States alone, saving those students 
$66,000,000 in that short span of time.\16\ Despite not expending any 
resources on marketing activities, their textbooks have been downloaded 
by three million users worldwide. More than the broad dissemination of 
the textbooks, the open licenses have enabled an ecosystem of more than 
38 different for-profit and not for-profit organizations to develop 
content in interactive and adaptive learning systems and through other 
ancillary products, providing greater reach than OpenStax could have 
achieved on its own. Similarly the Washington State Board for Community 
and Technical Colleges (SBCTC), the State agency that instituted the 
nation's first open licensing policy, did so to address issues of 
educational access. Since its inception in 2010,\17\ the policy has 
been implemented for competitive awards funded or managed by SBCTC 
totaling more than $25,000,000. The end products from these projects 
have been widely distributed with a CC BY license benefiting faculty 
members and the students across the country. For example, a textbook 
developed during one of the competitive grant projects has been 
downloaded 127,000 times and students have purchased over 5,000 copies 
of the book for approximately $15. These regulations build on the 
lessons learned through these efforts and seek to scale the benefits of 
these early successes across multiple Department competitive grant 
programs and education stakeholder groups.
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    \15\ https://www.merlot.org.
    \16\ https://openstax.org/impact.
    \17\ www.sbctc.edu/resources/documents/colleges-staff/programs-services/elearning-open-education/open-licensing-policy-board-resolution.pdf. Authorizing legislation: RCW 28A.300.803 created the 
Open Education Resources project to create openly licensed K-12 
resources aligned to Common Core standards: http://app.leg.wa.gov/rcw/default.aspx?cite=28A.300.803. See also: http://www.k12.wa.us/Communications/PressReleases2016/GoOpen.aspx.
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    In sum, we believe that these regulations will help to ensure the 
broader and more effective dissemination of Department grant-funded 
works to the public. Department stakeholders, such as LEAs, SEAs, IHEs, 
students, and others beyond direct grant recipients would be able to 
freely use and access the technology and high-quality materials. The 
framework established by these regulations will also result in greater 
transparency and efficiencies in how these stakeholders and other 
members of the public can access these valuable educational resources.

Accounting Statement

    As required by OMB Circular A-4 (available at www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf) in the 
following table we have prepared an accounting statement showing the 
classification of the expenditures associated with provisions of these 
final regulations. This table provides our best estimate of the changes 
in annual monetized costs, benefits, and transfers as a result of the 
final regulations.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Category                                            Benefits
------------------------------------------------------------------------
Broader and more effective
 dissemination of Department grant-
 funded works to the public...........           Not quantified
------------------------------------------------------------------------
Category                                              Cost
------------------------------------------------------------------------
                                                    7%               3%
------------------------------------------------------------------------
Labor Costs (dissemination activities)      $3,181,331       $3,218,633
------------------------------------------------------------------------

Alternatives Considered

    In determining whether to pursue regulatory action, we first 
considered other options that might accomplish our goals of enhancing 
dissemination and transparency. First, we considered whether we should 
establish an open licensing requirement as a supplemental priority, 
creating an authority for the Department to require open licensing in 
any appropriate grant program for fiscal year 2017 and future years. 
Although supplemental priorities provide opportunities for program 
offices to select or exempt certain grant programs from this 
requirement as appropriate, it would only lead to change program-by-
program. We believe that it will be far more efficient to establish the 
requirement as a general rule for our competitive grant programs, while 
also building in the program-level and grantee exceptions process when 
an exception is appropriate.
    We also considered whether we could instead license all 
copyrightable material to the public using our Federal purpose license. 
This approach would allow for access to and dissemination of grant-
funded resources. However, as previously discussed, the Federal purpose 
license requires significantly increased administrative capacity at the 
Department. From an administrative perspective, use of the Federal 
purpose license places the burden on the

[[Page 7396]]

Department to exercise the license for each program and grantee and 
copyrightable work, and is therefore not an efficient approach. Each 
grantee already has direct control over its work, can use Department 
grant funds to implement the open licensing requirement, and is in a 
far better position than the Department to make the work publicly 
available directly. Therefore, we believe this final rule will greatly 
expand the scope of dissemination compared with what the Department 
could achieve.
    The Department recognizes that the variety of our programs require 
grantees to adopt a wide range of strategies for implementation. As 
previously discussed, we believe this final rule advances our goals of 
broad dissemination by requiring an open license that does not restrict 
the distribution of derivative works, such as through commercial 
channels, or create additional restrictions on future licensing of 
derivative works not created with Department grant funds. We recognize 
that in some instances, placing limitations on the license (e.g. non-
commercial licenses) or restricting the ability to use/reuse materials 
may be appropriate and we are committed to working with grantees to 
develop licensing strategies that are aligned to their grant projects 
and that are consistent with the goals of the final rule.
    We also recognize that there will be cases where implementation of 
the requirements of this regulation would be inconsistent with 
statutory requirements of the grant programs or the Department's 
general goals. In cases such as those, the Secretary retains the 
ability to make exceptions to the open licensing requirement for those 
programs on a case-by-case basis under 2 CFR 3474.5(a) \18\ and 2 CFR 
200.102(b) and (c).
---------------------------------------------------------------------------

    \18\ 2 CFR 3474.5(a), `` . . . the Secretary of Education, after 
consultation with OMB, may allow exceptions for classes of Federal 
awards or non-Federal entities subject to the requirements of this 
part when exceptions are not prohibited by statute. However, in the 
interest of maximum uniformity, exceptions from the requirements of 
this part will be permitted only in unusual circumstances.''
---------------------------------------------------------------------------

Paperwork Reduction Act of 1995

    Section 3474.20(c) contains an information collection requirement. 
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3507(d)), 
the Department has submitted a copy of this section as part of a change 
request to OMB for its review under OMB Control Number(s) 1894-0006, 
and 1894-0009 to reflect this new requirement. There will be no 
increase or decrease in burden. This change request has been approved 
by OMB.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of law, 
no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection 
instrument does not display a currently valid OMB control number.
    Intergovernmental Review: These final regulations affect direct 
grant programs of the Department that are subject to Executive Order 
12372 and the regulations in 34 CFR part 79. One of the objectives of 
the Executive order is to foster an intergovernmental partnership and a 
strengthened federalism. The Executive order relies on processes 
developed by State and local governments for coordination and review of 
proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for these programs.

Assessment of Educational Impact

    In the NPRM we requested comments on whether the proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available. We 
received no comments.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects in 2 CFR Part 3474

    Accounting, Administrative practice and procedure, Adult education, 
Aged, Agriculture, American Samoa, Bilingual education, Blind, Business 
and industry, Civil rights, Colleges and universities, Communications, 
Community development, Community facilities, Copyright, Credit, 
Cultural exchange programs, Educational facilities, Educational 
research, Education, Education of disadvantaged, Education of 
individuals with disabilities, Educational study programs, Electric 
power, Electric power rates, Electric utilities, Elementary and 
secondary education, Energy conservation, Equal educational 
opportunity, Federally affected areas, Government contracts, Grant 
programs, Grant programs-agriculture, Grant programs-business and 
industry, Grant programs-communications, Grant programs-education, 
Grant programs-energy, Grant programs-health, Grant programs-housing 
and community development, Grant programs-social programs, Grant 
administration, Guam, Home improvement, Homeless, Hospitals, Housing, 
Human research subjects, Indians, Indians-education, Infants and 
children, Insurance, Intergovernmental relations, International 
organizations, Inventions and patents, Loan programs, Loan programs 
social programs, Loan programs-agriculture, Loan programs-business and 
industry, Loan programs-communications, Loan programs-energy, Loan 
programs-health, Loan programs-housing and community development, 
Manpower training programs, Migrant labor, Mortgage insurance, 
Nonprofit organizations, Northern Mariana Islands, Pacific Islands 
Trust Territories, Privacy, Renewable Energy, Reporting and 
recordkeeping requirements, Rural areas, Scholarships and fellowships, 
School construction, Schools, Science and technology, Securities, Small 
businesses, State and local governments, Student aid, Teachers, 
Telecommunications, Telephone, Urban areas, Veterans, Virgin Islands, 
Vocational education, Vocational rehabilitation, Waste treatment and 
disposal, Water pollution control, Water resources, Water supply, 
Watersheds, Women.

    Dated: January 11, 2017.
John B. King, Jr.,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
part 3474 of title 2 of the Code of Federal Regulations as follows:

[[Page 7397]]

PART 3474--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, 
AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS

0
1. The authority citation for part 3474 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3 and 3474 unless otherwise noted.


0
2. Add Sec.  3474.20 to read as follows:


Sec.  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.

[FR Doc. 2017-00910 Filed 1-18-17; 8:45 am]
 BILLING CODE 4000-01-P