[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
-----------------------------------------------------------------------
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
[[Page 7376]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 7378]]
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
[[Page 7379]]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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