82_FR_7388 82 FR 7376 - Open Licensing Requirement for Competitive Grant Programs

82 FR 7376 - Open Licensing Requirement for Competitive Grant Programs

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range7376-7397
FR Document2017-00910

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.

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 7376-7397]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-00910]



[[Page 7375]]

Vol. 82

Thursday,

No. 12

January 19, 2017

Part XII





 Department of Education





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 2 CFR Part 3474





 Open Licensing Requirement for Competitive Grant Programs; Final Rules

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

[[Page 7376]]


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DEPARTMENT OF EDUCATION

2 CFR Part 3474

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


Open Licensing Requirement for Competitive Grant Programs

AGENCY: Office of the Secretary, Department of Education.

ACTION: Final regulations.

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

DATES: These regulations are effective March 20, 2017.

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

SUPPLEMENTARY INFORMATION: 

Background and Summary of This Regulatory Action

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

[[Page 7377]]

copyrightable works created by the grantee or subgrantee that are not 
created with Department funds; any copyrightable work incorporated in 
the grant deliverable that is owned by a party other than the grantee 
or subgrantee, unless the grantee or subgrantee has acquired the right 
to provide such a license in that work; peer-reviewed scholarly 
publications that arise from any scientific research funded, either 
fully or partially, from grants awarded by the Department; or grants 
under the Department's Ready to Learn Television Program. Grantees 
receiving funds under the Department's formula grant programs will not 
be subject to the rule. Further, the rule will not apply to a grantee 
for which compliance with the rule would conflict with, or materially 
undermine the ability to protect or enforce, other intellectual 
property rights or obligations of the grantee or subgrantee, in 
existence or under development, including those rights provided under 
15 U.S.C. 1051, et seq., 18 U.S.C. 1831-1839, and 35 U.S.C. 200, et 
seq. Similarly, the rule does not alter any applicable rights in the 
grant deliverable available under 17 U.S.C. 106A, 203 or 1202, 15 
U.S.C. 1051, et seq., or State law.
    The rule also provides for the Department to consider individual 
grantee requests for exception to the open licensing requirement. We 
note in the rule some examples of situations that may be appropriate 
for an exception to the open licensing requirement, such as where the 
Secretary has determined that the grantee or subgrantee's dissemination 
plan would likely achieve meaningful dissemination equivalent to or 
greater than the dissemination likely to be achieved through the open 
licensing requirement. Similarly, we provide the example of a situation 
in which the open licensing requirement would impede the grantee's 
ability to form the required partnerships necessary to carry out the 
purpose of the grant. The list of examples in the rule is not 
exhaustive and is intended to indicate the types of situations in which 
an exception may be appropriate depending on the specific 
circumstances.
    In designing competitions that would not fall within any of the 
categorical exceptions specified in the rule, the Department will also 
consider whether to make an exception for a grant program for a 
particular year's competition. In that regard, the Department will 
consider whether the open licensing requirement conflicts with the 
statutory purpose of the program and whether harm caused to the program 
by implementing the open licensing requirement would outweigh its 
benefit. In granting exceptions, we may consider factors such as the 
following: (1) Possible negative effect on the statutory purpose of the 
program if an open licensing requirement is applied; (2) Possible 
barriers to the intended benefits of broad dissemination if an open 
licensing requirement is applied, for example, if the broadest possible 
dissemination can be achieved only through exclusive private entity 
partnerships; (3) The public need for, or benefit from, the opportunity 
to access or use the copyrightable grant deliverable given the context 
of the particular program; and (4) Other economic considerations, such 
as an undue financial hardship on the grantees to implement the rule. 
The Secretary's designee(s) will make final decisions about whether a 
program-level exception is granted. In each Notice Inviting 
Applications for a competitive grant program, the Department will 
clearly communicate whether or not the program is subject to the open 
licensing requirement or has received an exception.
    The Department recognizes that implementation of these regulations 
represents a change from current practice and therefore plans to take a 
phased approach to implementing the rule for new competitive grants 
announced in FY 2017 and will fully implement it for all applicable 
competitive grant programs across the Department in FY 2018. This 
approach will provide us additional opportunities to take steps such as 
preparing administrative procedures regarding the consideration of 
requests for exceptions and providing relevant staff training. In FY 
2017, each new competitive grant competition announcement will clearly 
indicate whether this rule will apply so that eligible applicants can 
make informed decisions regarding their participation in the 
competition.
    Public Comment: In the NPRM we published on November 3, 2015, we 
proposed to amend regulations regarding the Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards in order to require that all Department grantees awarded 
competitive grant funds openly license to the public copyrightable 
intellectual property created with Department grant funds. The NPRM 
established a December 3, 2015, deadline for the submission of written 
comments. To ensure that all interested parties were provided 
sufficient opportunity to submit comments, we published a notice in the 
Federal Register (80 FR 74715) on November 30, 2015, which extended the 
public comment period to December 18, 2015.
    In response to our invitation in the NPRM, 146 parties submitted 
comments. We group major issues according to subject and by comments 
submitted in response to the five additional questions we posed. 
Generally, we do not address technical and other minor changes or 
suggested changes the Secretary is not legally authorized to make under 
applicable statutory authority. In some cases, comments addressed 
issues beyond the scope of the proposed regulations. Although we 
appreciate commenters' concerns for broader issues affecting open 
access, because those comments are beyond the scope of this regulatory 
action, we do not discuss them here.
    Analysis of Comments and Changes: An analysis of the comments and 
changes in the regulations since publication of the NPRM follows. We 
note that we have renumbered some of the paragraphs from the proposed 
rule in this final rule. As a result, some of the provisions in the 
proposed rule have different paragraph numbers in this final rule.

General Comments

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

Request for Extension of the Comment Period

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

Legal Issues

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

[[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.
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    \1\ Creative Commons is a global non-profit organization whose 
mission is to promote sharing and reuse through free legal tools. 
The organization is most well-known for public copyright licenses 
known as Creative Commons licenses.
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    Discussion: In developing these final regulations, the Department 
did take into account the experiences of other Federal agencies with 
open licensing. Specifically, we (1) considered the Office of 
Management and Budget's (OMB) Open Government Directive in M-13-13 
Memorandum for Heads of Executive Departments and Agencies on Open Data 
Policy, which describes the Administration's intent to promote use of 
open licenses, in consultation with Project Open Data, the online, 
public repository intended to promote the continual improvement of the 
Open Data Policy, that allow minimal restrictions on copying, 
publishing, distributing, transmitting, adapting, or otherwise using 
the information for non-commercial or for commercial purpose; and (2) 
consulted with other grant-making agencies through an inter-agency 
working group on open education to better understand their grant-making 
processes and implementation best practices. These final regulations 
are based on our review of these issues and reflect our determination 
as to how best to tailor an open licensing requirement to the needs of 
our grant programs and grantees.
    We also note that the Department regularly engages our colleagues 
at other Federal agencies to explore the use of openly licensed 
resources in advancing the goals of our programs. In June 2016, the 
Department, in collaboration with NSF and the Institute for Museum and 
Library Services (IMLS), convened an Open Educational Resources (OER) 
Research Meeting, attended by representatives from #GoOpen States and 
Districts, leading principal investigators of projects funded by NSF, 
IMLS, and the Department's Institute of Education Sciences (IES) 
programs, as well as with other knowledgeable education stakeholders 
and researchers. The convening was designed around articulating key OER 
research issues, identifying OER research infrastructure needs, and 
exploring potential partnerships to pursue research and development 
projects. A separate, more detailed discussion regarding the suggestion 
to use Creative Commons licenses is below.
    Changes: None.
    Comment: Several commenters stated that this rule is unnecessary 
because, under current policy, the Department can already disseminate 
works created through grant funds. These commenters cite the current 
policy in 2 CFR 200.315(b) that provides the Federal awarding agency 
with a royalty-free, nonexclusive and irrevocable right to reproduce, 
publish, or otherwise use the work for Federal purposes, and to 
authorize others to do so.
    Discussion: As we discuss elsewhere in these final regulations, in 
practice, the Department has exercised the Federal purpose license 
described in 2 CFR 200.315(b), and previously established in 34 CFR 
parts 74 and 80, only in rare cases and in those instances the license 
did not allow the public to access resources directly without first 
contacting the Department. This regulation should enable deliverables 
produced under our competitive grants to be more readily available to 
the public. As discussed earlier, we are concerned that the current 
policy has

[[Page 7380]]

not allowed for broad or efficient dissemination of copyrightable 
works.
    Changes: None.
    Comment: One commenter noted language in the preamble to the 
proposed rule where the commenter thought that, in order to ensure an 
open license, the grantee must not be allowed to copyright works 
resulting from Department funding. The commenter noted that, in fact, 
licenses of any kind are only needed when one party has legal rights, 
such as those established by copyright.
    Discussion: We agree that the explanation in the preamble of the 
NPRM could have been clearer and appreciate the opportunity to clarify 
these issues. The NPRM did not propose to amend the Copyright Act of 
1976 (17 U.S.C. 101 et seq.), which would be outside of the scope of 
the Department's authority. The legal framework for open licenses is 
built on the foundation established by the Copyright Act, which 
automatically gives protection to original works of authorship at the 
moment they are fixed in any tangible medium of expression and provides 
certain exclusive rights to authors of these works, 17 U.S.C. 106. In 
addition to those exclusive rights, the Copyright Act and other 
provisions of federal and state law provide various elements of what 
are known internationally as ``moral rights.'' \2\ In addition, the 
Copyright Act provides for termination rights, i.e., the right of the 
author or her statutorily designated successors in interest to 
terminate a copyright transfer or license during a five-year period 
beginning several decades after the date of the grant or of first 
publication of the work. Thus, in the final rule, we clarify that 
grantees will retain ownership of their respective copyrights to their 
original works of authorship but, by accepting Department grant funds, 
agree to license to the public the right to exercise their exclusive 
rights. We also clarify that the rule does not alter any applicable 
rights in the grant deliverable available under 17 U.S.C. 106A, 203 or 
1202, 15 U.S.C. 1051, et seq., or State law. We have revised the 
regulatory text to make these clarifications.
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    \2\ Moral rights include the rights ``(1) to claim authorship of 
their works (`the right of paternity'); and (2) to object to 
distortion, mutilation or other modification of their works, or 
other derogatory action with respect thereto, that would prejudice 
their honor or reputation (the `right of integrity').'' S. Rep. No. 
100-352 at 9 (1988); see Berne Convention for the Protection of 
Literary and Artistic Works, Art. 6bis. The sources for such rights 
under U.S. law include various provisions of the Copyright Act and 
Lanham Act, and various state laws. S. Rep. No. 100-352 at 9.
---------------------------------------------------------------------------

    We note that the proposed rule excluded current 2 CFR 200.315(b) 
from the Department's regulations. We proposed this exception to avoid 
any inconsistency between the proposed open licensing rule and the 
provision in 2 CFR 200.315(b) recognizing a copyright to material 
developed with grant funds. In light of the comment we received, 
however, we recognize that there is not an inconsistency and therefore, 
there is no need to exclude 2 CFR 200.315(b) from our regulations. As 
the commenter pointed out, a grantee must hold a copyright to any 
material to which it provides a copyright license. Indeed, central to 
the functionality of this final rule is the existence of provisions 
that give title for intangible property created with Federal support to 
the creators that is provided in 2 CFR 200.315(a) and (b).
    Changes: In final 2 CFR 3474.20, we have removed the exception of 
Sec.  200.315(b) from the Department's regulations. We also removed 
proposed Sec.  3474.20(d), which retains the Federal government's 
rights to copyrighted material, because the substance of that paragraph 
is already contained in Sec.  200.315(b). Additionally, we have added 
an exception to Sec.  3474.20(d)(2) to expressly provide that the rule 
does not alter any applicable rights in the grant deliverable available 
under 17 U.S.C. 106A, 203 or 1202, 15 U.S.C. 1051, et seq., or State 
law.

Scope and Definitions

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

[[Page 7381]]

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

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

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

[[Page 7382]]

meet the requirements of the rule, the proliferation of novel licenses 
could result in confusion about usage rights or concerns about 
interoperability with other existing licenses. In these cases, the new 
or non-standardized licensing language may discourage or delay adoption 
or integration of resources due to the additional time and resources 
required to interpret the unfamiliar language and to verify legal 
interoperability issues and widespread sharing and dissemination could 
decrease, rather than increase. Directing grantees towards a licensing 
framework with broad familiarity would enhance the utility of the 
requirement and enable more immediate impact. These commenters cite 
Creative Commons licenses as the most commonly known, easily 
recognizable, and widely-used public license. To support this claim, 
commenters cited Web sites such as Wikipedia, Flickr, and 
Whitehouse.gov as well-known repositories of content that is openly 
licensed using Creative Commons licenses. Others note that Creative 
Commons recently reported that one billion works are licensed using one 
of their public licenses.
    Second, commenters stated that the Department should adopt a 
Creative Commons licensing framework because it would align with 
frameworks already in place at other organizations. This alignment 
would enable entities to collaborate and share resources across these 
projects with fewer barriers. For example, commenters pointed to open 
licensing and access policies by other funders including the Bill and 
Melinda Gates Foundation, the William and Flora Hewlett Foundation, the 
Ford Foundation, the World Health Organization, and the World Bank, 
that require use of Creative Commons licenses. Commenters also pointed 
to other governments (the United Kingdom, Australia, and Poland) that 
have identified Creative Commons licenses as they begin to implement 
similar policies. Many commenters pointed to grant programs at the 
Department of State, including USAID, and the Department of Labor's 
Trade Adjustment Assistance Community College and Career Training 
(TAACCCT) grant program as examples of programs at other Federal 
agencies that have already implemented open licensing requirements 
using Creative Commons licenses. Commenters noted that Creative Commons 
licenses have been embraced by open courseware projects that have 
produced diverse educational materials and innovative textbook 
offerings currently used at hundreds of major colleges and universities 
and K-12 schools throughout the country.
    Third, commenters stated that individually created licenses may 
satisfy the conditions provided in the proposed rule, but may not have 
the same force or effect of law. Commenters asserted that Creative 
Commons licenses are legally robust, internationally recognized 
licenses that are enforceable and easily adopted worldwide as they were 
written to conform to the international treaties governing copyright.
    Finally, commenters noted the practicality of a Creative Commons 
license. These commenters stated that while Creative Commons licenses 
have a three-layered design (legal, human readable, machine-readable), 
the process of selecting and affixing the license and license deed is 
simple. In addition, commenters pointed to the wide availability of 
tools and resources developed to support the implementation of the 
Creative Commons licensing framework in various contexts. By adopting 
the same licensing framework, the Department could also utilize these 
existing tools and resources in its own implementation and training 
activities.
    Discussion: We agree that the particular terms of the Creative 
Commons Attribution licenses (CC BY) are an example of a permissible 
type of license. However, we are concerned that limiting the license to 
only a CC BY license would result in less flexibility for grantees and 
would not account for changes and developments that could occur with 
respect to the types of licenses commonly used. We believe an 
appropriate balance of these concerns is to maintain our description of 
an open license.
    However, we have revised Sec.  3474.20(b)(2) to provide greater 
specificity concerning the requirements for the open licenses that a 
grantee may use under this rule that ensure that licenses selected are 
readily identified, either visually or electronically, and to minimize 
confusion about licensing terms and usage rights. These include the 
requirement that grantees use a symbol or device that readily 
communicates to users the permissions granted concerning the use of the 
copyrightable work, machine-readable code for digital resources, 
readily accessed legal terms, and the statement of attribution and 
disclaimer specified in 34 CFR 75.620(b).
    Changes: In Sec.  3474.20(b)(2) we added provisions requiring that 
any license used contain the following features: (i) A symbol or device 
that readily communicates to users the permissions granted concerning 
the use of the copyrightable work; (ii) machine-readable code for 
digital resources; (iii) readily accessed legal terms; and (iv) the 
statement of attribution and disclaimer specified in 34 CFR 75.620(b).
    Comment: Many commenters suggested that the Department expand the 
scope of the proposed rule beyond competitive grants to include all 
grants funded by the Department, including those grants funded by 
formula. These commenters note that while the absolute amount of 
funding that is available through competitive grant programs is not 
insignificant, it is small proportionally, when compared with the total 
funding available through formula programs. The commenters noted that 
in excluding formula grant programs funded under the Elementary and 
Secondary Education Act of 1965 (ESEA), as amended by the Every Student 
Succeeds Act (ESSA), and the Individuals with Disabilities Education 
Act (IDEA), the Department overlooks valuable resources created as a 
result of these programs. A few of these commenters specifically noted 
that with the passage of ESSA, many programs that were previously 
funded as competitive grants have been converted to State block grants, 
further decreasing the number of programs that would be covered by the 
proposed rule. The commenters noted the loss of public benefit, and 
encouraged the Department to promote greater development of open 
educational resources as a critical strategy to ensuring educational 
equity, especially for those served by schools in less wealthy 
communities.
    Discussion: In developing the proposed rule, we considered whether 
it should apply to formula grants but we believe it is most appropriate 
to limit the applicability of the rule to competitive grants. Based on 
our experience in implementing this final rule for the Department's 
competitive grant programs, we will explore whether it is appropriate 
to expand its coverage to other Department grant programs.
    With respect to ESSA, we note a few provisions that may be helpful 
in establishing the broader context of the Department's work to 
increase dissemination of educational materials through the use of open 
educational resources and educational technology. In particular, we 
note that while Title IV of ESSA authorizes block grants for services 
that previously were provided under competitive grants under ESEA, 
openly licensed resources are now incorporated more broadly into all 
digital education interventions funded by ESSA formula programs. For 
example, ESSA incorporates open

[[Page 7383]]

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

[[Page 7384]]

openly license the publications at this time may limit their ability to 
distribute rigorously reviewed scholarly publications without this 
exception.
    Changes: We have moved this exception from proposed paragraph 
(c)(3) and into final paragraph (d)(1)(v) and removed the reference to 
the IES public access policy from the exception. We also expanded the 
exception to include all peer-reviewed scholarly publications resulting 
from research grants awarded by any office within the Department.
    Comment: Many commenters expressed concern that the open licensing 
requirement would cause grantees to violate existing copyright or 
licensing restrictions if they were required to openly license 
materials. For example, one commenter noted that grant-funded 
educational resources could incorporate the use of licensed stock 
photos. Similarly, some commenters note that in many cases, the new 
modifications to existing intellectual property may require the 
original, copyrighted work in order for context or application. Another 
commenter indicated there was confusion in understanding the difference 
between our usage of the phrases ``pre-existing content'' and 
``existing intellectual property.'' Many commenters pointed in 
particular to modifications of computer software, where improvements 
would not be useful without access to the original licensed programs.
    Discussion: It is not our intent to cause any grantee to violate 
any existing copyrights or licensing restrictions. First, this rule 
covers only those grant deliverables that are created wholly or in part 
with Department competitive grant funds, and that constitute new 
copyrightable works. In instances where the grant deliverables consist 
of copyrightable modifications to a pre-existing work, the rule only 
extends to those modifications that can be separately identified and 
only to the extent that open licensing is permitted under the terms of 
any licenses or other legal restrictions on the use of pre-existing 
works. This rule does not impose a requirement to license pre-existing 
works. This rule also does not require the grantee to modify the terms 
of any pre-existing license or restrictions, irrespective of whether 
the grantee is the copyright owner. To ensure these points are clear, 
we are revising the rule to reflect that it does not cover 
copyrightable works that are not created with Department grant funds or 
any copyrightable work incorporated in the grant deliverable that is 
owned by a party other than the grantee or subgrantee, unless the 
grantee or subgrantee has acquired the right to provide such a license 
in that work. Further, the rule does not apply to grantees or 
subgrantees where compliance would result in a conflict with the 
grantee's or subgrantee's other intellectual property-related 
obligations, such as those under the terms of a license agreement.
    Similarly, this rule does not require that grantees provide access 
to computer programs protected under copyright or other laws. We 
understand that in many cases, the modifications may only be viable 
within the context of existing commercial software or platforms. 
However, we believe that these modifications, accompanied by any 
supporting documentation, may benefit other users of the same 
commercial software or platforms to the extent that these modifications 
can be separately identified and extracted from the underlying 
proprietary work and that open licensing would be permissible under the 
terms of any restrictions applicable to that underlying work. In light 
of these comments, we have revised the text of the rule to make this 
distinction more salient.
    Finally, we agree that the references to ``pre-existing content'' 
and ``existing intellectual property'' required appropriate revisions 
in order to provide greater clarity to the public.
    Changes: We have revised Sec.  3474.20(a) to provide that the rule 
applies to copyrightable modifications to pre-existing works, to the 
extent such modifications can be separately identified and only to the 
extent that open licensing is permitted under the terms of any licenses 
or other legal restrictions on the use of pre-existing works.'' 
Additionally, Sec.  3474.20(d)(1)(iv) and (e), now provide, 
respectively, that the rule does not apply to ``[c]opyrightable works 
created by the grantee or subgrantee that are not created with grant 
funds,'' or ``any copyrightable work incorporated in the grant 
deliverable that is owned by a party other than the grantee or 
subgrantee, unless the grantee or subgrantee has acquired the right to 
provide such a license in that work.'' Also, Sec.  3474.20(d)(1)(vi) 
now provides that the rule does not apply to ``[g]rantees or 
subgrantees for which compliance with these requirements would conflict 
with, or materially undermine the ability to protect or enforce, other 
intellectual property rights or obligations of the grantee or 
subgrantee, in existence or under development, including those provided 
under 15 U.S.C. 1051, et seq., 18 U.S.C. 1831-1839, and 35 U.S.C. 200, 
et seq.'' Finally, the references to ``pre-existing content'' and 
``existing intellectual property'' have been removed and the rule now 
refers to ``pre-existing works.''
    Comment: Many commenters stated that the requirement to openly 
license copyrightable works is overly broad. Commenters noted that the 
Department appears to intend to implement the regulation 
indiscriminately, without regard for how to distribute works for 
maximum benefit or without regard for whether the public would benefit 
from the intellectual property. Specifically, one commenter noted that 
emails, deliberative work product, and assessments, among other 
resources would be included in this requirement.
    Discussion: Our intention with these regulations is to ensure broad 
dissemination of and access to high-quality educational resources. We 
recognize that, in the course of developing these resources, grantees 
will generate additional copyrightable materials such as email 
correspondence, administrative documentation, or deliberative work 
products. Although these materials are items that are considered 
copyrightable works produced through a grant project, many of them will 
not be considered program support materials necessary to the use of the 
deliverables and therefore would not need to be openly licensed. 
Others, however, may be considered program support materials necessary 
in order to understand, learn from, and replicate deliverables. For 
example, some outreach materials may describe grant deliverables to 
stakeholders, or others may document best practices in implementation 
for specific target populations. These program support materials that 
are considered necessary to the use of grant deliverables, must be 
openly licensed and made available to the public. Other items, such as 
staff training curricula, production guides or planning documents that 
are created as a result of implementing the grant project, may or may 
not provide useful information for understanding the administration of 
grant activities. In these cases, the Department is committed to 
working with grantees to determine whether these should be part of 
their dissemination plan. In cases where these support materials are 
appropriately considered records, grantees should follow record-keeping 
requirements in 34 CFR 75.730-732. Our goal is to ensure that the 
public may benefit from the sharing of those grant products that may 
have significant value, but not to unduly burden grantees.
    We agree with the commenters that our intentions and the rule's 
scope

[[Page 7385]]

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

[[Page 7386]]

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

[[Page 7387]]

periods end. As shown elsewhere in this document, there have been many 
examples of the broad dissemination and innovations developed from 
high-quality openly licensed educational content.
    We again note that any derivative works created based upon grant 
deliverables using non-Department grant funds are not covered by this 
rule. Grantees may leverage works created under an open license to 
establish or maintain a relationship with a private entity for the 
purpose of commercialization.
    The Department appreciates the commenters' concerns that our 
stakeholders may eschew Department grants in favor of other funding 
without these requirements. Our competitive grant programs are intended 
to support equal access to high-quality education for all students. By 
allowing others to freely use, with minimal restrictions, the 
educational resources created with our funding, we are providing 
opportunities for the global community of stakeholders to pursue 
solutions to their challenges. As previously mentioned, commercial 
incentives are not the only drivers of innovation in the field of 
education; similarly, we do not believe economic motive to be the sole 
consideration for stakeholders to participate in our grant programs. We 
observe that after implementing their similar policy, the Department of 
Labor continued to require applicants to form public-private 
partnerships in numerous notices inviting applicants for competitive 
grants. Despite the requirement that grantees make copyrightable 
intellectual property available under a Creative Commons Attribution 
(CC BY) license, the many programs covered since the enactment of their 
regulation have received a large pool of applicants. We recognize, 
however, that there may be some situations where a grantee may have 
difficulty forming a partnership with a private entity to create a 
grant deliverable. We believe that such situations are best addressed 
on a case-by-case basis and are revising the final regulation to 
include this situation as an example of where the Secretary may 
consider it appropriate to grant an exception to the open licensing 
requirement.
    Changes: We have revised Sec.  3474.20(d)(1)(viii) to provide that 
the open licensing requirement does not apply to ``[g]rantees or 
subgrantees for which compliance with these requirements would conflict 
with, or materially undermine the ability to protect or enforce other 
intellectual property rights or obligations of the grantee or 
subgrantee, in existence or under development, including those provided 
under 15 U.S.C. 1051, et seq., 18 U.S.C. 1831-1839, and 35 U.S.C. 200, 
et seq.'' We also have included in Sec.  3474.20(d)(1)(vii) examples of 
situations in which the Secretary may consider it appropriate to grant 
an individual exception to the open licensing requirement. One of these 
examples is the situation in which the grantee's compliance with the 
open licensing requirement would impede the grantee's or subgrantee's 
ability to form the required partnership to carry out the purpose of 
the grant. The other example is discussed later in this section.
    Comment: Commenters stated their concerns related to openly 
licensing research-based interventions resulting from the Department's 
research grants. These comments fall into three general categories. 
First, commenters noted that grantees often receive research funds to 
produce early prototype models or interventions that have not yet 
benefited from robust efficacy studies. Openly licensing these 
resources would allow the public to access them ahead of testing and 
could lead to adoption of ineffective or potentially harmful resources. 
Commenters noted that this would especially harm disadvantaged 
populations. Second, commenters stated that the interventions developed 
through research grants are complex to administer, often requiring 
expert training or technical support in order to maintain quality 
control and ensure valid outcomes. Commenters noted that quality could 
be diminished through uncontrolled adaptations or derivatives that 
deviate from the evidence base or context established by the original 
researchers. Similarly, commenters also stated that in some cases, 
individuals could deliberately ignore the original parameters or 
context established by the researchers and pursue inappropriate use. In 
all of these cases, the reputation of the researcher could be 
compromised and the effectiveness of the original resource dismissed.
    Third, many commenters noted that research institutions exercise 
good stewardship over grant resources and already employ a number of 
strategies to broadly disseminate their findings. Many commenters also 
provided examples of existing initiatives that result in broad 
dissemination of research-based interventions. Some of these examples 
included use of strong partnerships with a commercial partner to allow 
for continued refinements to the products, reinvestment into future 
research, and technical support for implementation, even after the end 
of the grant period. These commenters also note that many research 
institutions do not have the expertise or capacity to effectively scale 
interventions, and even if openly licensed resources were available, 
wide dissemination would not occur without these partnerships. 
Additionally, some commenters stated that the existing IES goal 
structure was the most effective model of ensuring research-based 
interventions are scaled and disseminated widely, and recommended that 
IES maintain this goal structure.
    Discussion: We appreciate the concern that many IES grantees and 
education researchers have expressed related to implementation of the 
rule. In general, we note that this rule is intended to apply across 
competitive grant programs, not only to IES grantees.
    We agree with commenters that rigorous efficacy testing is 
necessary to ensure high quality resources, including interventions, 
products, and assessments, benefit students. We note that in addition 
to the early prototype models or interventions themselves, any final 
versions of program support materials necessary to the use of the 
prototype model or intervention, including professional development and 
training materials, research findings, and documentation of the context 
and efficacy of the resources created with grant funds would also be 
made available through an open license. Additionally, any materials 
created as part of IES research grants would also include rigorous 
peer-reviewed scholarly publications that would be available through 
ERIC. The availability of these supporting materials will allow the 
public to readily discern which resources could be appropriately used 
and which resources have not yet reached maturity. In some cases, these 
materials will prescribe the appropriate context and correct 
implementation methodology of the resource. We believe that 
practitioners should not be denied access to materials because of the 
possibility that they will misunderstand or misuse them. By openly 
licensing the supporting materials, data, and other program support 
materials, grantees can ensure that practitioners have the tools 
necessary to understand, learn from, and replicate deliverables, and to 
consult with researchers as appropriate.
    In response to the commenters' concerns, we make three 
observations. First, even before product maturity, prototypes and early 
stage research, including supporting documentation, can greatly benefit 
other researchers, allowing them to also test and refine the resource, 
potentially creating prototypes for different applications. We believe

[[Page 7388]]

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

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

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

Additional Questions

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

[[Page 7389]]

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

[[Page 7390]]

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

Executive Orders 12866 and 13563

Regulatory Impact Analysis

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

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

Need for Regulatory Action

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

[[Page 7391]]

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

Analysis of Potential Impacts

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

[[Page 7392]]

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

Potential Costs and Benefits

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

Analysis of Technology Infrastructure Costs

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

Analysis of Technology Labor Costs

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

[[Page 7393]]

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

Other Potential Costs

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

Benefits

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

[[Page 7394]]

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

    \6\ https://creativecommons.org/licenses/by-nc-sa/3.0/.
    \7\ http://www.rand.org/content/dam/rand/pubs/research_reports/RR1500/RR1529/RAND_RR1529.pdf.
---------------------------------------------------------------------------

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

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

    Under the National Language Resource Centers (LRC) grant program, 
the Department awarded funds to IHEs for research and development of 
resources for Less Commonly Taught Languages (LCTL). Though there was 
no specific requirement for the grantees to openly license their 
resources, one grantee did choose to do so. As previously discussed, 
the University of Texas at Austin created the Center for Open 
Educational Resources and Language Learning (COERLL), which creates 
fully openly licensed language and pedagogical materials for 16 
languages, in addition to an open platform for discovery, remixing, and 
repurposing of these language resources, and open research. There are 
hundreds of different and diverse open materials, including curricula, 
lessons, worksheets, assessments, textbooks, videos, podcasts, research 
studies, open apps for student learning, and interactive platform, 
materials openly licensed on their Web site available under an open 
license and publically available on their Web site. These resources 
include language learning materials such as OER for K'ichee' Maya, an 
indigenous language spoken in Guatemala; software that allows a group 
of users to annotate the same text together; a series of native speaker 
surveys; a teacher professional development digital badge system; 
research on the perception and use of foreign language OER; and a Web 
site supporting a community of practice on Open Education in language 
learning.
    Finally, the Department's FITW grant program has required grantees 
to openly license intellectual property.\9\ The online remediation tool 
created by the Southern New Hampshire University under this grant 
program will help underprepared, underrepresented, and low-income 
working adults obtain a postsecondary credential and reduce the time to 
degree completion. Under the terms of the grant, the open license will 
allow any other IHE or adult education provider to use this tool to 
serve the working adults in its service areas, without incurring costs 
or duplicating efforts of development.
---------------------------------------------------------------------------

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

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

[[Page 7395]]

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

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

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

    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.thefederalregister.org/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



                                                  7376             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  DEPARTMENT OF EDUCATION                                 subject to copyright that was developed                resources are known to exist,
                                                                                                          or for which ownership was acquired                    stakeholders and the public are not sure
                                                  2 CFR Part 3474                                         under a grant award, the Department                    how to access them, what usage rights
                                                  RIN 1894–AA07                                           reserves a royalty-free, non-exclusive,                or permissions are necessary to use
                                                                                                          and irrevocable right to reproduce,                    them, or how to obtain those rights or
                                                  [Docket ID ED–2015–OS–0105]                             publish, or otherwise use for Federal                  permissions. Accordingly, while the
                                                                                                          purposes, and to authorize others to do                Department’s Federal purpose license
                                                  Open Licensing Requirement for                          so (referred to as a ‘‘Federal purpose                 does allow for the public to obtain a
                                                  Competitive Grant Programs                              license’’). This license allows the                    copy of these works from the
                                                  AGENCY:  Office of the Secretary,                       government the ability to authorize                    Department, this has rarely occurred.
                                                  Department of Education.                                others to use work funded by                              We believe that the open licensing
                                                  ACTION: Final regulations.                              Department grants.                                     regulation we are adopting here will
                                                                                                             Grantees under the Department’s                     address these key problems. Through an
                                                  SUMMARY:   The Secretary amends the                     competitive grant programs create a                    open license, grantees under the
                                                  regulations of the Uniform                              number of copyrightable works using                    Department’s competitive grant
                                                  Administrative Requirements, Cost                       Department competitive grant funds that                programs will explicitly give permission
                                                  Principles, and Audit Requirements for                  have significant benefit for students,                 to the public to access, reproduce,
                                                  Federal Awards in order to require,                     parents, teachers, school districts,                   publicly perform, publicly display, and
                                                  subject to certain categorical exceptions               States, institutions of higher education,              distribute the copyrightable work;
                                                  and case-by-case exceptions, that                       and the public overall. These                          prepare derivative works, as defined in
                                                  Department grantees awarded                             copyrightable works are wide ranging in                the Copyright Act, 17 U.S.C. 101, and
                                                  competitive grant funds openly license                  nature and include instructional                       reproduce, publicly perform, publicly
                                                  to the public copyrightable grant                       materials, personalized learning                       display and distribute those derivative
                                                  deliverables created with Department                    delivery systems, assessment systems,                  works; and otherwise use the
                                                  grant funds.                                            language tools, and teacher professional               copyrightable work, created in whole or
                                                  DATES: These regulations are effective                  development training modules, just to                  in part with competitive grant funds
                                                  March 20, 2017.                                         name a few. The Department’s grantees                  provided by the Department, provided
                                                                                                          creating these works include State                     that in all such instances attribution is
                                                  FOR FURTHER INFORMATION CONTACT:
                                                                                                          educational agencies (SEAs), local                     given to the copyright holder.
                                                  Sharon Leu, U.S. Department of
                                                                                                          educational agencies (LEAs),                           Copyrightable grant deliverables, or
                                                  Education, 400 Maryland Avenue SW.,
                                                                                                          institutions of higher education (IHEs),               deliverables, are final versions of a work
                                                  Room 6W224, Washington, DC 20202.
                                                                                                          and non-profit organizations and while                 developed to carry out the purpose of
                                                  Telephone: (202) 453–5646 or by email:                  the works are created under a specific                 the grant, as specified in the grant
                                                  tech@ed.gov.                                            grant program and therefore may target                 announcement (i.e., notice inviting
                                                     If you use a telecommunications
                                                                                                          a specific school or group of students,                applications or application package).
                                                  device for the deaf (TDD) or text
                                                                                                          the resources are such that other                      The requirement will apply both to the
                                                  telephone (TTY), call the Federal Relay
                                                                                                          education stakeholders would                           deliverables themselves and any final
                                                  Service (FRS), toll free, at 1–800–877–
                                                                                                          significantly benefit from being able to               version of program support materials
                                                  8339.
                                                                                                          access them, reuse them, and in some                   necessary to the use of the deliverables.
                                                  SUPPLEMENTARY INFORMATION:                              cases, modify them to address their                    We believe that this will result in
                                                  Background and Summary of This                          needs and goals.                                       significantly enhanced dissemination of
                                                                                                             It is the Department’s experience,                  deliverables created with Department
                                                  Regulatory Action
                                                                                                          however, that copyrightable works                      competitive grant funds and provide
                                                    On November 3, 2015, the Secretary                    created under competitive grants made                  education stakeholders and members of
                                                  published a notice of proposed                          by the Department generally have not                   the public with a simpler and more
                                                  rulemaking (NPRM) in the Federal                        been disseminated widely to the public.                transparent framework to access, use,
                                                  Register (80 FR 67672) that would                       This is the case despite the existence of              and possibly modify these deliverables
                                                  amend regulations regarding the                         the Federal purpose license and efforts                for the benefit of their education
                                                  Uniform Administrative Requirements,                    by the Department and grantees to                      communities.
                                                  Cost Principles, and Audit                              proactively make them available.                          The approach the Department is
                                                  Requirements for Federal Awards.                        Although the Department provides                       taking with this rule is limited in scope.
                                                  Under the amendments proposed in the                    individualized technical assistance and                It will apply only to grantees receiving
                                                  NPRM, the Department would require,                     actively works with all grantees on                    Department competitive grant funds,
                                                  with certain categorical exceptions and                 dissemination planning, we have found                  which constitutes approximately 10
                                                  the ability to grant case-by-case                       that many education stakeholders and                   percent of the Department’s total
                                                  exceptions, that entities receiving                     other members of the public are                        discretionary funding. Within that
                                                  Department funds under a competitive                    generally not aware of the educational                 category of grants, we anticipate
                                                  grant program openly license all                        resources created as a result of the                   approximately 60 percent would
                                                  copyrightable intellectual property                     Department’s competitive grant                         potentially be subject to the rule. The
                                                  created with those funds. These final                   programs. We believe this is because the               rule will not apply to grants that
                                                  regulations adopt the proposed                          education resources often are created                  provide funding for general operating
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                                                  amendments with modifications that we                   and disseminated locally or                            expenses; grants that provide supports
                                                  discuss in greater detail in these final                disseminated to limited audiences by                   to individuals (e.g., scholarships,
                                                  regulations.                                            grantees in presentations at research                  fellowships); grant deliverables that are
                                                    Under the Department’s current                        conferences, through professional                      jointly funded by the Department and
                                                  regulations, title to intellectual property,            associations, or by commercial                         another Federal agency if the other
                                                  including copyright, acquired under                     mechanisms that are not easily accessed                Federal agency does not require the
                                                  Department grant funds vests in the                     by the general public or to a wider                    open licensing of its grant deliverables
                                                  grantee. At the same time, for any work                 group of stakeholders. Even when the                   for the relevant grant program;


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7377

                                                  copyrightable works created by the                      the program by implementing the open                   November 30, 2015, which extended the
                                                  grantee or subgrantee that are not                      licensing requirement would outweigh                   public comment period to December 18,
                                                  created with Department funds; any                      its benefit. In granting exceptions, we                2015.
                                                  copyrightable work incorporated in the                  may consider factors such as the                          In response to our invitation in the
                                                  grant deliverable that is owned by a                    following: (1) Possible negative effect on             NPRM, 146 parties submitted
                                                  party other than the grantee or                         the statutory purpose of the program if                comments. We group major issues
                                                  subgrantee, unless the grantee or                       an open licensing requirement is                       according to subject and by comments
                                                  subgrantee has acquired the right to                    applied; (2) Possible barriers to the                  submitted in response to the five
                                                  provide such a license in that work;                    intended benefits of broad                             additional questions we posed.
                                                  peer-reviewed scholarly publications                    dissemination if an open licensing                     Generally, we do not address technical
                                                  that arise from any scientific research                 requirement is applied, for example, if                and other minor changes or suggested
                                                  funded, either fully or partially, from                 the broadest possible dissemination can                changes the Secretary is not legally
                                                  grants awarded by the Department; or                    be achieved only through exclusive                     authorized to make under applicable
                                                  grants under the Department’s Ready to                  private entity partnerships; (3) The                   statutory authority. In some cases,
                                                  Learn Television Program. Grantees                      public need for, or benefit from, the                  comments addressed issues beyond the
                                                  receiving funds under the Department’s                  opportunity to access or use the                       scope of the proposed regulations.
                                                  formula grant programs will not be                      copyrightable grant deliverable given                  Although we appreciate commenters’
                                                  subject to the rule. Further, the rule will             the context of the particular program;                 concerns for broader issues affecting
                                                  not apply to a grantee for which                        and (4) Other economic considerations,                 open access, because those comments
                                                  compliance with the rule would conflict                 such as an undue financial hardship on                 are beyond the scope of this regulatory
                                                  with, or materially undermine the                       the grantees to implement the rule. The                action, we do not discuss them here.
                                                  ability to protect or enforce, other                    Secretary’s designee(s) will make final                   Analysis of Comments and Changes:
                                                  intellectual property rights or                         decisions about whether a program-level                An analysis of the comments and
                                                  obligations of the grantee or subgrantee,               exception is granted. In each Notice                   changes in the regulations since
                                                  in existence or under development,                      Inviting Applications for a competitive                publication of the NPRM follows. We
                                                  including those rights provided under                   grant program, the Department will                     note that we have renumbered some of
                                                  15 U.S.C. 1051, et seq., 18 U.S.C. 1831–                clearly communicate whether or not the                 the paragraphs from the proposed rule
                                                  1839, and 35 U.S.C. 200, et seq.                        program is subject to the open licensing               in this final rule. As a result, some of
                                                  Similarly, the rule does not alter any                  requirement or has received an                         the provisions in the proposed rule have
                                                  applicable rights in the grant deliverable              exception.                                             different paragraph numbers in this
                                                  available under 17 U.S.C. 106A, 203 or                     The Department recognizes that
                                                                                                                                                                 final rule.
                                                  1202, 15 U.S.C. 1051, et seq., or State                 implementation of these regulations
                                                  law.                                                    represents a change from current                       General Comments
                                                     The rule also provides for the                       practice and therefore plans to take a
                                                                                                                                                                   Comments: The Department received
                                                  Department to consider individual                       phased approach to implementing the
                                                                                                                                                                 many positive comments regarding the
                                                  grantee requests for exception to the                   rule for new competitive grants
                                                                                                                                                                 proposed regulations. These
                                                  open licensing requirement. We note in                  announced in FY 2017 and will fully
                                                                                                                                                                 commenters praised the Department for
                                                  the rule some examples of situations                    implement it for all applicable
                                                                                                                                                                 taking steps to provide broader access
                                                  that may be appropriate for an exception                competitive grant programs across the
                                                                                                                                                                 for taxpayers to deliverables produced
                                                  to the open licensing requirement, such                 Department in FY 2018. This approach
                                                                                                                                                                 with Department grant funds.
                                                  as where the Secretary has determined                   will provide us additional opportunities
                                                  that the grantee or subgrantee’s                        to take steps such as preparing                          Discussion: We appreciate the
                                                  dissemination plan would likely                         administrative procedures regarding the                commenters’ support.
                                                  achieve meaningful dissemination                        consideration of requests for exceptions                 Changes: None.
                                                  equivalent to or greater than the                       and providing relevant staff training. In              Request for Extension of the Comment
                                                  dissemination likely to be achieved                     FY 2017, each new competitive grant                    Period
                                                  through the open licensing requirement.                 competition announcement will clearly
                                                  Similarly, we provide the example of a                  indicate whether this rule will apply so                  Comments: We received several
                                                  situation in which the open licensing                   that eligible applicants can make                      comments requesting that the
                                                  requirement would impede the grantee’s                  informed decisions regarding their                     Department extend the public comment
                                                  ability to form the required partnerships               participation in the competition.                      period for the NPRM, indicating that
                                                  necessary to carry out the purpose of the                  Public Comment: In the NPRM we                      additional time would be helpful to
                                                  grant. The list of examples in the rule                 published on November 3, 2015, we                      analyze and respond to the
                                                  is not exhaustive and is intended to                    proposed to amend regulations                          Department’s proposals.
                                                  indicate the types of situations in which               regarding the Uniform Administrative                      Discussion: The Department agreed
                                                  an exception may be appropriate                         Requirements, Cost Principles, and                     that additional time for public comment
                                                  depending on the specific                               Audit Requirements for Federal Awards                  would be helpful and extended the
                                                  circumstances.                                          in order to require that all Department                comment period by an additional 15
                                                     In designing competitions that would                 grantees awarded competitive grant                     days. We believe that 45 days provided
                                                  not fall within any of the categorical                  funds openly license to the public                     the public a meaningful opportunity to
                                                  exceptions specified in the rule, the                   copyrightable intellectual property                    comment on the proposed rule, and this
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                                                  Department will also consider whether                   created with Department grant funds.                   is supported by the complex and
                                                  to make an exception for a grant                        The NPRM established a December 3,                     thoughtful comments we received.
                                                  program for a particular year’s                         2015, deadline for the submission of                      Changes: None.
                                                  competition. In that regard, the                        written comments. To ensure that all
                                                                                                                                                                 Legal Issues
                                                  Department will consider whether the                    interested parties were provided
                                                  open licensing requirement conflicts                    sufficient opportunity to submit                         Comments: One commenter requested
                                                  with the statutory purpose of the                       comments, we published a notice in the                 clarification regarding the basis for the
                                                  program and whether harm caused to                      Federal Register (80 FR 74715) on                      determination that this regulatory action


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                                                  7378             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

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


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7379

                                                  proposed open licensing requirement                     rather than grant competition. As a                    distributing, transmitting, adapting, or
                                                  does not present a conflict with the                    result, SBIR operates under the                        otherwise using the information for non-
                                                  Bayh-Dole Act, since the Bayh-Dole Act                  regulations as described in the Federal                commercial or for commercial purpose;
                                                  applies only to patentable inventions                   Acquisition Regulations at 48 CFR parts                and (2) consulted with other grant-
                                                  and not to copyrightable works. In the                  1–99 and Executive Order 13329 rather                  making agencies through an inter-
                                                  case of computer software, these                        than 2 CFR part 3474. The Department’s                 agency working group on open
                                                  commenters stated that for the subset of                SBIR program, therefore, is not currently              education to better understand their
                                                  software that is considered patentable,                 covered by 2 CFR part 3474 of the                      grant-making processes and
                                                  the open licensing requirement does not                 Uniform Administrative Requirements,                   implementation best practices. These
                                                  prevent the inventor from also seeking                  Cost Principles, and Audit                             final regulations are based on our
                                                  patent protection under the legal                       Requirements for Federal Awards and                    review of these issues and reflect our
                                                  conditions established by the Bayh-Dole                 would not be subject to this final rule.               determination as to how best to tailor an
                                                  Act.                                                    The SBIR program is established under                  open licensing requirement to the needs
                                                     Discussion: We appreciate the                        the Small Business Innovation                          of our grant programs and grantees.
                                                  commenters raising these issues and                     Development Act of 1982 (Pub. L. 97–                      We also note that the Department
                                                  agree that further clarification is                     219) and operates according the Small                  regularly engages our colleagues at other
                                                  necessary as to the rule’s scope and                    Business Administration Policy                         Federal agencies to explore the use of
                                                  application. The Department notes the                   Directives found at: https://                          openly licensed resources in advancing
                                                  distinction between copyrightable                       www.sbir.gov/sites/default/files/                      the goals of our programs. In June 2016,
                                                  works, patentable inventions, and                       sbir_pd_with_1-8-14_amendments_2-24-                   the Department, in collaboration with
                                                  information that may be protected as                    14.pdf. Additional information about                   NSF and the Institute for Museum and
                                                  trade secrets under applicable laws. The                the regulations, legislation, and                      Library Services (IMLS), convened an
                                                  Department further acknowledges that                    guidance for SBIR can be found at:                     Open Educational Resources (OER)
                                                  products such as computer software                      http://www2.ed.gov/programs/sbir/                      Research Meeting, attended by
                                                  may contain elements that would be                      legislation.html.                                      representatives from #GoOpen States
                                                  protected under copyright laws, patent                    Changes: None.                                       and Districts, leading principal
                                                  laws, and trade secret laws, giving rise                  Comment: Many commenters
                                                                                                                                                                 investigators of projects funded by NSF,
                                                  to commenters’ concerns. The                            suggested that any licensing
                                                                                                                                                                 IMLS, and the Department’s Institute of
                                                  Department did not intend that this                     requirements should align with current
                                                                                                                                                                 Education Sciences (IES) programs, as
                                                  regulation would interfere with other                   requirements used by other Federal
                                                                                                                                                                 well as with other knowledgeable
                                                  intellectual property rights of grantees,               agencies. Many commenters who
                                                                                                                                                                 education stakeholders and researchers.
                                                  including the rights to protect trade                   supported the open licensing
                                                                                                                                                                 The convening was designed around
                                                  secrets and to obtain patent protection                 requirement recommended that the
                                                                                                                                                                 articulating key OER research issues,
                                                  on inventions. Thus, we have revised                    Department consider similar
                                                                                                                                                                 identifying OER research infrastructure
                                                  the rule to clarify this issue.                         requirements implemented at the U.S.
                                                                                                                                                                 needs, and exploring potential
                                                     Changes: We have revised                             Department of Labor, the U.S.
                                                                                                                                                                 partnerships to pursue research and
                                                  § 3474.20(d)(1)(viii) to expressly provide              Department of State, and the United
                                                  that the rule does not apply to grantees                States Agency for International                        development projects. A separate, more
                                                  if compliance with the rule would                       Development (USAID). These                             detailed discussion regarding the
                                                  conflict with, or materially undermine                  commenters noted that at these                         suggestion to use Creative Commons
                                                  the ability to protect or enforce, other                agencies, the open licensing                           licenses is below.
                                                  intellectual property rights or                         requirement for grant programs and                        Changes: None.
                                                  obligations of the grantee or subgrantee,               contracts specifically requires Creative                  Comment: Several commenters stated
                                                  in existence or under development,                      Commons 1 licenses. Some commenters                    that this rule is unnecessary because,
                                                  including those provided under 15                       suggested that the regulations be aligned              under current policy, the Department
                                                  U.S.C. 1051, et seq., 18 U.S.C. 1831–                   with current practice at the National                  can already disseminate works created
                                                  1839, and 35 U.S.C. 200, et seq.                        Science Foundation.                                    through grant funds. These commenters
                                                     Comment: Several commenters raised                     Discussion: In developing these final                cite the current policy in 2 CFR
                                                  concerns that the proposed regulation                   regulations, the Department did take                   200.315(b) that provides the Federal
                                                  contradicts the purpose of the Small                    into account the experiences of other                  awarding agency with a royalty-free,
                                                  Business Innovation Research (SBIR)                     Federal agencies with open licensing.                  nonexclusive and irrevocable right to
                                                  program. These commenters noted that                    Specifically, we (1) considered the                    reproduce, publish, or otherwise use the
                                                  the stated purpose of the SBIR program                  Office of Management and Budget’s                      work for Federal purposes, and to
                                                  is to encourage domestic small                          (OMB) Open Government Directive in                     authorize others to do so.
                                                  businesses to commercialize research-                   M–13–13 Memorandum for Heads of                           Discussion: As we discuss elsewhere
                                                  based innovations and that loss of                      Executive Departments and Agencies on                  in these final regulations, in practice,
                                                  exclusive copyright would contradict                    Open Data Policy, which describes the                  the Department has exercised the
                                                  this purpose. Similarly, commenters                     Administration’s intent to promote use                 Federal purpose license described in 2
                                                  also note that the proposed regulation                  of open licenses, in consultation with                 CFR 200.315(b), and previously
                                                  would conflict with SBIR program                        Project Open Data, the online, public                  established in 34 CFR parts 74 and 80,
                                                  directives issued by the Small Business                 repository intended to promote the                     only in rare cases and in those instances
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                                                  Administration. Other commenters                        continual improvement of the Open                      the license did not allow the public to
                                                  urged the Department to provide an                      Data Policy, that allow minimal                        access resources directly without first
                                                  exemption to the SBIR and Small                         restrictions on copying, publishing,                   contacting the Department. This
                                                  Business Technology Transfer (STTR)                                                                            regulation should enable deliverables
                                                  program from this requirement.                             1 Creative Commons is a global non-profit
                                                                                                                                                                 produced under our competitive grants
                                                     Discussion: We note that the                         organization whose mission is to promote sharing       to be more readily available to the
                                                                                                          and reuse through free legal tools. The organization
                                                  Department’s SBIR program is currently                  is most well-known for public copyright licenses       public. As discussed earlier, we are
                                                  awarded through contract competition                    known as Creative Commons licenses.                    concerned that the current policy has


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                                                  7380               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  not allowed for broad or efficient                        the Department’s regulations. We                      entities. Applying this rule to for-profit
                                                  dissemination of copyrightable works.                     proposed this exception to avoid any                  entities is consistent with 2 CFR
                                                     Changes: None.                                         inconsistency between the proposed                    200.101(c), which provides that a
                                                     Comment: One commenter noted                           open licensing rule and the provision in              Federal awarding agency may apply the
                                                  language in the preamble to the                           2 CFR 200.315(b) recognizing a                        Administrative Requirements, Cost
                                                  proposed rule where the commenter                         copyright to material developed with                  Principles, and Audit Requirements for
                                                  thought that, in order to ensure an open                  grant funds. In light of the comment we               Federal Awards regulations to for-profit
                                                  license, the grantee must not be allowed                  received, however, we recognize that                  entities unless there is a conflict with
                                                  to copyright works resulting from                         there is not an inconsistency and                     international obligations. We note that,
                                                  Department funding. The commenter                         therefore, there is no need to exclude 2              in general, the eligibility requirements
                                                  noted that, in fact, licenses of any kind                 CFR 200.315(b) from our regulations. As               for our programs contained in statute
                                                  are only needed when one party has                        the commenter pointed out, a grantee                  limit eligibility to governmental entities
                                                  legal rights, such as those established by                must hold a copyright to any material to              and not-for-profit entities and for-profit
                                                  copyright.                                                which it provides a copyright license.                entities are only eligible for our
                                                     Discussion: We agree that the                          Indeed, central to the functionality of               competitive grant funds in rare
                                                  explanation in the preamble of the                        this final rule is the existence of                   instances. Thus, the suggestion to
                                                  NPRM could have been clearer and                          provisions that give title for intangible             review the impact of this rule on each
                                                  appreciate the opportunity to clarify                     property created with Federal support to              type of grantee (not-for-profit and for-
                                                  these issues. The NPRM did not propose                    the creators that is provided in 2 CFR                profit entities) separately is
                                                  to amend the Copyright Act of 1976 (17                    200.315(a) and (b).                                   unnecessary.
                                                  U.S.C. 101 et seq.), which would be                          Changes: In final 2 CFR 3474.20, we                   In reviewing this issue, we realized
                                                  outside of the scope of the Department’s                  have removed the exception of                         that the proposed rule was not clear on
                                                  authority. The legal framework for open                   § 200.315(b) from the Department’s                    whether the open licensing requirement
                                                  licenses is built on the foundation                       regulations. We also removed proposed                 would apply to subgrantees. We believe
                                                  established by the Copyright Act, which                   § 3474.20(d), which retains the Federal               that it would and have revised the rule
                                                  automatically gives protection to                         government’s rights to copyrighted                    to make clear that it applies to the
                                                  original works of authorship at the                       material, because the substance of that               subgrantees of competitive grantees that
                                                  moment they are fixed in any tangible                     paragraph is already contained in                     are subject to this rule.
                                                  medium of expression and provides                         § 200.315(b). Additionally, we have                      Changes: We have added
                                                  certain exclusive rights to authors of                    added an exception to § 3474.20(d)(2) to              ‘‘subgrantee’’ to various paragraphs
                                                  these works, 17 U.S.C. 106. In addition                   expressly provide that the rule does not              throughout the rule.
                                                  to those exclusive rights, the Copyright                  alter any applicable rights in the grant                 Comment: One commenter requested
                                                  Act and other provisions of federal and                   deliverable available under 17 U.S.C.                 a definition of the meaning of ‘‘Federal
                                                  state law provide various elements of                     106A, 203 or 1202, 15 U.S.C. 1051, et                 purpose,’’ as used in the NPRM.
                                                  what are known internationally as                         seq., or State law.                                      Discussion: Because we removed the
                                                  ‘‘moral rights.’’ 2 In addition, the                                                                            proposed exception to 2 CFR 200.315(b),
                                                  Copyright Act provides for termination                    Scope and Definitions                                 this final rule does not use the term
                                                  rights, i.e., the right of the author or her                 Comment: None.                                     ‘‘Federal purpose.’’ Therefore, there is
                                                  statutorily designated successors in                         Discussion: For the purposes of this               no need to elaborate on the meaning of
                                                  interest to terminate a copyright transfer                regulatory action, there is no substantive            this term for the purposes of this final
                                                  or license during a five-year period                      difference between ‘‘direct competitive               rule.
                                                  beginning several decades after the date                  discretionary grant’’ and ‘‘competitive                  Changes: None.
                                                  of the grant or of first publication of the               grant.’’ We have selected the shorter                    Comment: One commenter requested
                                                  work. Thus, in the final rule, we clarify                 term for the sake of clarity and to enable            a more precise definition of Open
                                                  that grantees will retain ownership of                    better understanding in the field.                    Education Resources (OER). This
                                                  their respective copyrights to their                         Changes: Throughout this rule, we                  commenter stated that the broad
                                                  original works of authorship but, by                      replaced ‘‘direct competitive                         definition provided in the NPRM of
                                                  accepting Department grant funds, agree                   discretionary grant’’ with ‘‘competitive              openly licensed educational resources
                                                  to license to the public the right to                     grant.’’                                              could lead to confusion on usage rights.
                                                  exercise their exclusive rights. We also                     Comment: One commenter noted that                     Discussion: It is important to note that
                                                  clarify that the rule does not alter any                  the term ‘‘grantee’’ is not defined in 2              for the purposes of this regulation, we
                                                  applicable rights in the grant deliverable                CFR part 200 and that its use in the                  do not use the term OER. Instead, we are
                                                  available under 17 U.S.C. 106A, 203 or                    NPRM could include both for-profit and                requiring that an open license be
                                                  1202, 15 U.S.C. 1051, et seq., or State                   not-for-profit entities. The commenter                applied to all grant deliverables,
                                                  law. We have revised the regulatory text                  made several observations related to the              including final versions of program
                                                  to make these clarifications.                             applicability of the proposed rule for                support materials that are necessary to
                                                     We note that the proposed rule                         different types of grantees and suggested             the use of the deliverables, developed to
                                                  excluded current 2 CFR 200.315(b) from                    that the Department separately review                 carry out the purpose of the grant, that
                                                                                                            impacts on for-profit and not-for-profit              are created by Department grantees or
                                                     2 Moral rights include the rights ‘‘(1) to claim       entities and specifically questioned                  subgrantees, wholly or in part with
                                                  authorship of their works (‘the right of paternity’);     whether the NPRM should apply to for-                 Department competitive grant funds. A
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                                                  and (2) to object to distortion, mutilation or other      profit entities.                                      subset of the resources that may be
                                                  modification of their works, or other derogatory
                                                  action with respect thereto, that would prejudice
                                                                                                               Discussion: Although the term                      required to be openly licensed will meet
                                                  their honor or reputation (the ‘right of integrity’).’’   ‘‘grantee’’ is not defined in 2 CFR part              the common definition of OER, but this
                                                  S. Rep. No. 100–352 at 9 (1988); see Berne                200, our regulations at 34 CFR 77.1                   rule is not limited to only OER.
                                                  Convention for the Protection of Literary and             define the term ‘‘grantee.’’ As defined in            Furthermore, we believe that the
                                                  Artistic Works, Art. 6bis. The sources for such
                                                  rights under U.S. law include various provisions of
                                                                                                            77.1, a ‘‘grantee’’ includes any entity               education-focused policy reflected in
                                                  the Copyright Act and Lanham Act, and various             that receives a grant, which can include              these final regulations establishes
                                                  state laws. S. Rep. No. 100–352 at 9.                     both for-profit and not-for-profit                    clearly the conditions of an open


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           7381

                                                  license. That is, the grantee or                        Department. This change is discussed                   open license, the right to prepare
                                                  subgrantee must ‘‘grant to the public a                 further elsewhere in this preamble.                    derivative works and reproduce,
                                                  worldwide, non-exclusive, royalty-free,                 Although the final rule no longer                      publicly perform, publicly display and
                                                  perpetual, and irrevocable license to (i)               references the IES public access policy                distribute those derivative works. At the
                                                  access, reproduce, publicly perform,                    specifically, we are using the term ‘‘peer             same time, we appreciate commenters’
                                                  publicly display, and distribute the                    reviewed scholarly publications’’                      concerns regarding ensuring that a
                                                  copyrightable work; (ii) prepare                        because it is used by IES grantees, who                grantee or subgrantee has the discretion
                                                  derivative works and reproduce,                         represent a majority of those covered by               to select an open license, including a
                                                  publicly perform, publicly display and                  this exception and is widely used in the               license that limits use of the grant
                                                  distribute those derivative works; and                  field.                                                 deliverable to noncommercial purposes.
                                                  (iii) otherwise use the copyrightable                      Changes: We have revised 2 CFR                      Although we intended in the proposed
                                                  work, provided that in all such                         3474.20(d)(1)(v) to use the same term                  rule that a grantee would have this
                                                  instances attribution is given to the                   defined in the IES public access policy,               discretion, we realize this was not clear
                                                  copyright holder.’’ However, we believe                 ‘‘peer-reviewed scholarly publications.’’              and are revising the regulation to reflect
                                                  that greater clarity concerning usage                      Comment: Many commenters                            the grantee’s or subgrantee’s discretion
                                                  rights would be achieved by including                   generally appreciated the conditions of                in this area.
                                                  a definition of ‘‘derivative works’’ and                the open license required in § 3473.20(a)                 For copyrightable works that are not
                                                  we have revised the rule to do so.                      and praised the Department for                         funded by the Department, we have
                                                     Changes: We have modified                            including terms that would ensure the                  similarly left the terms under which any
                                                  § 3474.20(f)(2) to provide that ‘‘[a]                   broadest possible use by eliminating                   derivative works may be licensed to the
                                                  ‘‘derivative work’’ means a ‘‘derivative                barriers while ensuring authors receive                discretion of the owner of the derivative
                                                  work’’ as defined in the Copyright Act,                 attribution for their work.                            work (e.g., if a grantee created a
                                                  17 U.S.C. 101.’’                                           Discussion: We appreciate the                       deliverable with grant funds and then
                                                     Comment: One commenter requested                     commenters’ support.                                   creates a derivative work with other
                                                  a clearer definition of the term ‘‘peer-                   Changes: None.                                      funding, the grantee would have the
                                                  reviewed research publications.’’                          Comment: Many commenters that                       flexibility to choose how to license the
                                                     Discussion: The proposed rule used                   supported the conditions of the open                   derivative work, such as through
                                                  the term ‘‘peer-reviewed research                       license proposed in the NPRM                           commercial channels).
                                                  publications’’ in describing materials                  suggested that these conditions be                        Finally, as discussed earlier in this
                                                  that will not be covered by this final                  expanded to explicitly include the                     section, we have defined the term
                                                  rule. This is terminology that differs                  ‘‘right to redistribute’’ openly licensed              ‘‘derivative work’’ to have the same
                                                  slightly from the terminology used in                   materials, including adapted derivative                meaning as contained in the Copyright
                                                  the IES Policy Regarding Public Access                  works. These commenters note that                      Act.
                                                  to Research (‘‘public access policy’’) 3                without this explicit right, grantees may                 Changes: We have modified
                                                  that uses the term ‘‘peer-reviewed                      interpret the conditions to restrict                   § 3474.20(b)(1) to explicitly provide the
                                                  scholarly publications.’’ For the                       downstream users from distributing any                 right to prepare derivative works based
                                                  purposes of this final rule, we use the                 modifications or adaptations made to                   upon the openly licensed works, as well
                                                  term ‘‘peer-reviewed scholarly                          these materials. The commenters assert                 as the right to reproduce, publicly
                                                  publications’’ to refer to final peer-                  that the free distribution of                          perform, publicly display and distribute
                                                  reviewed manuscripts accepted for                       modifications or adaptations makes                     those derivative works. We have also
                                                  publication, that arise from research                   open licenses powerful tools for                       revised § 3474.20(b)(2) to reflect that a
                                                  funded, either fully or partially, by                   innovation when any member of the                      grantee or subgrantee has the discretion
                                                  Federal funds awarded through a                         public can modify or adapt grant-funded                to select a license that limits use of the
                                                  Department of Education grant,                          resources. Conversely, some                            grant deliverable to noncommercial
                                                  procurement contract, or other                          commenters proposed additional                         purposes. In addition, we have modified
                                                  agreement. A final peer-reviewed                        modifications that would explicitly                    § 3474.20(f)(2) to provide that ‘‘[a]
                                                  manuscript is the author’s final                        prohibit downstream users of the openly                ‘‘derivative work’’ means a ‘‘derivative
                                                  manuscript of a peer-reviewed scholarly                 licensed materials, including adapted                  work’’ as defined in the Copyright Act,
                                                  paper accepted for publication,                         derivative works, from restricting usage               17 U.S.C. 101.’’
                                                  including all modifications from the                    or commercially distributing derivative                   Comment: In addition to comments
                                                  peer review process. The final peer-                    works. These include Creative                          on the conditions of open licenses,
                                                  reviewed manuscript is not the same as                  Commons licenses with Non-                             many commenters recommended that
                                                  the final published article, which is                   Commercial and Share-Alike                             the Department specify the type of
                                                  defined as a publisher’s authoritative                  restrictions.                                          licenses that grantees should use under
                                                  copy of the paper, including all                           Discussion: The Department agrees                   this rule. In particular, commenters
                                                  modifications from the publishing peer-                 with the importance of having the                      suggested that the Department clearly
                                                  review process, copyediting, stylistic                  ability to adapt and modify openly                     reference or require the use of Creative
                                                  edits, and formatting changes. However,                 licensed materials, and to distribute                  Commons licenses. Commenters offered
                                                  the content included in both the final                  those adaptations and modifications.                   a number of considerations.
                                                  peer-reviewed manuscript and the final                  We generally believe that where there                     First, commenters noted that without
                                                  published article is identical.                         are few restrictions on the terms of use               a commonly understood licensing
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                                                     We note that we have expanded the                    and distribution, the Department’s                     framework, lack of clarity over terms of
                                                  exception in § 3474.20(d)(1)(v) to                      grant-funded resources will be                         use would impede the Department’s
                                                  include all peer-reviewed scholarly                     disseminated widely. To that end, we                   goals of widespread sharing and
                                                  publications that arise from any                        have expressly clarified that for                      dissemination. For example, individual
                                                  scientific research funded, either fully                copyrightable grant deliverables created               grantees could each create their own
                                                  or partially, from grants awarded by the                in whole or in part with Department                    open licenses by following the
                                                                                                          competitive grant funds, the grantee or                conditions provided in the proposed
                                                    3 https://ies.ed.gov/funding/researchaccess.asp.      subgrantee must include as a term of the               rule. While their intent would be to


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                                                  7382             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  meet the requirements of the rule, the                  major colleges and universities and K–                 granted concerning the use of the
                                                  proliferation of novel licenses could                   12 schools throughout the country.                     copyrightable work; (ii) machine-
                                                  result in confusion about usage rights or                  Third, commenters stated that                       readable code for digital resources; (iii)
                                                  concerns about interoperability with                    individually created licenses may                      readily accessed legal terms; and (iv) the
                                                  other existing licenses. In these cases,                satisfy the conditions provided in the                 statement of attribution and disclaimer
                                                  the new or non-standardized licensing                   proposed rule, but may not have the                    specified in 34 CFR 75.620(b).
                                                  language may discourage or delay                        same force or effect of law. Commenters                   Comment: Many commenters
                                                  adoption or integration of resources due                asserted that Creative Commons licenses                suggested that the Department expand
                                                  to the additional time and resources                    are legally robust, internationally                    the scope of the proposed rule beyond
                                                  required to interpret the unfamiliar                    recognized licenses that are enforceable               competitive grants to include all grants
                                                  language and to verify legal                            and easily adopted worldwide as they                   funded by the Department, including
                                                  interoperability issues and widespread                  were written to conform to the                         those grants funded by formula. These
                                                  sharing and dissemination could                         international treaties governing                       commenters note that while the absolute
                                                                                                          copyright.                                             amount of funding that is available
                                                  decrease, rather than increase. Directing                  Finally, commenters noted the                       through competitive grant programs is
                                                  grantees towards a licensing framework                  practicality of a Creative Commons                     not insignificant, it is small
                                                  with broad familiarity would enhance                    license. These commenters stated that                  proportionally, when compared with
                                                  the utility of the requirement and enable               while Creative Commons licenses have                   the total funding available through
                                                  more immediate impact. These                            a three-layered design (legal, human                   formula programs. The commenters
                                                  commenters cite Creative Commons                        readable, machine-readable), the process               noted that in excluding formula grant
                                                  licenses as the most commonly known,                    of selecting and affixing the license and              programs funded under the Elementary
                                                  easily recognizable, and widely-used                    license deed is simple. In addition,                   and Secondary Education Act of 1965
                                                  public license. To support this claim,                  commenters pointed to the wide                         (ESEA), as amended by the Every
                                                  commenters cited Web sites such as                      availability of tools and resources                    Student Succeeds Act (ESSA), and the
                                                  Wikipedia, Flickr, and Whitehouse.gov                   developed to support the                               Individuals with Disabilities Education
                                                  as well-known repositories of content                   implementation of the Creative                         Act (IDEA), the Department overlooks
                                                  that is openly licensed using Creative                  Commons licensing framework in                         valuable resources created as a result of
                                                  Commons licenses. Others note that                      various contexts. By adopting the same                 these programs. A few of these
                                                  Creative Commons recently reported                      licensing framework, the Department                    commenters specifically noted that with
                                                  that one billion works are licensed using               could also utilize these existing tools                the passage of ESSA, many programs
                                                  one of their public licenses.                           and resources in its own                               that were previously funded as
                                                     Second, commenters stated that the                   implementation and training activities.                competitive grants have been converted
                                                  Department should adopt a Creative                         Discussion: We agree that the                       to State block grants, further decreasing
                                                  Commons licensing framework because                     particular terms of the Creative                       the number of programs that would be
                                                  it would align with frameworks already                  Commons Attribution licenses (CC BY)                   covered by the proposed rule. The
                                                  in place at other organizations. This                   are an example of a permissible type of                commenters noted the loss of public
                                                                                                          license. However, we are concerned that                benefit, and encouraged the Department
                                                  alignment would enable entities to
                                                                                                          limiting the license to only a CC BY                   to promote greater development of open
                                                  collaborate and share resources across
                                                                                                          license would result in less flexibility               educational resources as a critical
                                                  these projects with fewer barriers. For
                                                                                                          for grantees and would not account for                 strategy to ensuring educational equity,
                                                  example, commenters pointed to open
                                                                                                          changes and developments that could                    especially for those served by schools in
                                                  licensing and access policies by other                  occur with respect to the types of
                                                  funders including the Bill and Melinda                                                                         less wealthy communities.
                                                                                                          licenses commonly used. We believe an                     Discussion: In developing the
                                                  Gates Foundation, the William and                       appropriate balance of these concerns is               proposed rule, we considered whether it
                                                  Flora Hewlett Foundation, the Ford                      to maintain our description of an open                 should apply to formula grants but we
                                                  Foundation, the World Health                            license.                                               believe it is most appropriate to limit
                                                  Organization, and the World Bank, that                     However, we have revised                            the applicability of the rule to
                                                  require use of Creative Commons                         § 3474.20(b)(2) to provide greater                     competitive grants. Based on our
                                                  licenses. Commenters also pointed to                    specificity concerning the requirements                experience in implementing this final
                                                  other governments (the United                           for the open licenses that a grantee may               rule for the Department’s competitive
                                                  Kingdom, Australia, and Poland) that                    use under this rule that ensure that                   grant programs, we will explore whether
                                                  have identified Creative Commons                        licenses selected are readily identified,              it is appropriate to expand its coverage
                                                  licenses as they begin to implement                     either visually or electronically, and to              to other Department grant programs.
                                                  similar policies. Many commenters                       minimize confusion about licensing                        With respect to ESSA, we note a few
                                                  pointed to grant programs at the                        terms and usage rights. These include                  provisions that may be helpful in
                                                  Department of State, including USAID,                   the requirement that grantees use a                    establishing the broader context of the
                                                  and the Department of Labor’s Trade                     symbol or device that readily                          Department’s work to increase
                                                  Adjustment Assistance Community                         communicates to users the permissions                  dissemination of educational materials
                                                  College and Career Training (TAACCCT)                   granted concerning the use of the                      through the use of open educational
                                                  grant program as examples of programs                   copyrightable work, machine-readable                   resources and educational technology.
                                                  at other Federal agencies that have                     code for digital resources, readily                    In particular, we note that while Title IV
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                                                  already implemented open licensing                      accessed legal terms, and the statement                of ESSA authorizes block grants for
                                                  requirements using Creative Commons                     of attribution and disclaimer specified                services that previously were provided
                                                  licenses. Commenters noted that                         in 34 CFR 75.620(b).                                   under competitive grants under ESEA,
                                                  Creative Commons licenses have been                        Changes: In § 3474.20(b)(2) we added                openly licensed resources are now
                                                  embraced by open courseware projects                    provisions requiring that any license                  incorporated more broadly into all
                                                  that have produced diverse educational                  used contain the following features: (i)               digital education interventions funded
                                                  materials and innovative textbook                       A symbol or device that readily                        by ESSA formula programs. For
                                                  offerings currently used at hundreds of                 communicates to users the permissions                  example, ESSA incorporates open


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7383

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


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                                                  7384             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  openly license the publications at this                 subgrantee, unless the grantee or                      Finally, the references to ‘‘pre-existing
                                                  time may limit their ability to distribute              subgrantee has acquired the right to                   content’’ and ‘‘existing intellectual
                                                  rigorously reviewed scholarly                           provide such a license in that work.                   property’’ have been removed and the
                                                  publications without this exception.                    Further, the rule does not apply to                    rule now refers to ‘‘pre-existing works.’’
                                                     Changes: We have moved this                          grantees or subgrantees where                             Comment: Many commenters stated
                                                  exception from proposed paragraph                       compliance would result in a conflict                  that the requirement to openly license
                                                  (c)(3) and into final paragraph (d)(1)(v)               with the grantee’s or subgrantee’s other               copyrightable works is overly broad.
                                                  and removed the reference to the IES                    intellectual property-related obligations,             Commenters noted that the Department
                                                  public access policy from the exception.                such as those under the terms of a                     appears to intend to implement the
                                                  We also expanded the exception to                       license agreement.                                     regulation indiscriminately, without
                                                  include all peer-reviewed scholarly                        Similarly, this rule does not require               regard for how to distribute works for
                                                  publications resulting from research                    that grantees provide access to computer               maximum benefit or without regard for
                                                  grants awarded by any office within the                 programs protected under copyright or                  whether the public would benefit from
                                                  Department.                                             other laws. We understand that in many                 the intellectual property. Specifically,
                                                     Comment: Many commenters                             cases, the modifications may only be                   one commenter noted that emails,
                                                  expressed concern that the open                         viable within the context of existing                  deliberative work product, and
                                                  licensing requirement would cause                       commercial software or platforms.                      assessments, among other resources
                                                  grantees to violate existing copyright or               However, we believe that these                         would be included in this requirement.
                                                  licensing restrictions if they were                     modifications, accompanied by any                         Discussion: Our intention with these
                                                  required to openly license materials. For               supporting documentation, may benefit                  regulations is to ensure broad
                                                  example, one commenter noted that                       other users of the same commercial                     dissemination of and access to high-
                                                  grant-funded educational resources                      software or platforms to the extent that               quality educational resources. We
                                                  could incorporate the use of licensed                   these modifications can be separately                  recognize that, in the course of
                                                  stock photos. Similarly, some                           identified and extracted from the                      developing these resources, grantees
                                                  commenters note that in many cases, the                 underlying proprietary work and that                   will generate additional copyrightable
                                                  new modifications to existing                           open licensing would be permissible                    materials such as email correspondence,
                                                  intellectual property may require the                   under the terms of any restrictions                    administrative documentation, or
                                                  original, copyrighted work in order for                 applicable to that underlying work. In                 deliberative work products. Although
                                                  context or application. Another                         light of these comments, we have                       these materials are items that are
                                                  commenter indicated there was                           revised the text of the rule to make this              considered copyrightable works
                                                  confusion in understanding the                          distinction more salient.                              produced through a grant project, many
                                                  difference between our usage of the                        Finally, we agree that the references               of them will not be considered program
                                                  phrases ‘‘pre-existing content’’ and                    to ‘‘pre-existing content’’ and ‘‘existing             support materials necessary to the use of
                                                  ‘‘existing intellectual property.’’ Many                intellectual property’’ required                       the deliverables and therefore would not
                                                  commenters pointed in particular to                     appropriate revisions in order to                      need to be openly licensed. Others,
                                                  modifications of computer software,                     provide greater clarity to the public.                 however, may be considered program
                                                  where improvements would not be                            Changes: We have revised                            support materials necessary in order to
                                                  useful without access to the original                   § 3474.20(a) to provide that the rule                  understand, learn from, and replicate
                                                  licensed programs.                                      applies to copyrightable modifications                 deliverables. For example, some
                                                     Discussion: It is not our intent to                  to pre-existing works, to the extent such              outreach materials may describe grant
                                                  cause any grantee to violate any existing               modifications can be separately                        deliverables to stakeholders, or others
                                                  copyrights or licensing restrictions.                   identified and only to the extent that                 may document best practices in
                                                  First, this rule covers only those grant                open licensing is permitted under the                  implementation for specific target
                                                  deliverables that are created wholly or                 terms of any licenses or other legal                   populations. These program support
                                                  in part with Department competitive                     restrictions on the use of pre-existing                materials that are considered necessary
                                                  grant funds, and that constitute new                    works.’’ Additionally,                                 to the use of grant deliverables, must be
                                                  copyrightable works. In instances where                 § 3474.20(d)(1)(iv) and (e), now provide,              openly licensed and made available to
                                                  the grant deliverables consist of                       respectively, that the rule does not                   the public. Other items, such as staff
                                                  copyrightable modifications to a pre-                   apply to ‘‘[c]opyrightable works created               training curricula, production guides or
                                                  existing work, the rule only extends to                 by the grantee or subgrantee that are not              planning documents that are created as
                                                  those modifications that can be                         created with grant funds,’’ or ‘‘any                   a result of implementing the grant
                                                  separately identified and only to the                   copyrightable work incorporated in the                 project, may or may not provide useful
                                                  extent that open licensing is permitted                 grant deliverable that is owned by a                   information for understanding the
                                                  under the terms of any licenses or other                party other than the grantee or                        administration of grant activities. In
                                                  legal restrictions on the use of pre-                   subgrantee, unless the grantee or                      these cases, the Department is
                                                  existing works. This rule does not                      subgrantee has acquired the right to                   committed to working with grantees to
                                                  impose a requirement to license pre-                    provide such a license in that work.’’                 determine whether these should be part
                                                  existing works. This rule also does not                 Also, § 3474.20(d)(1)(vi) now provides                 of their dissemination plan. In cases
                                                  require the grantee to modify the terms                 that the rule does not apply to                        where these support materials are
                                                  of any pre-existing license or                          ‘‘[g]rantees or subgrantees for which                  appropriately considered records,
                                                  restrictions, irrespective of whether the               compliance with these requirements                     grantees should follow record-keeping
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                                                  grantee is the copyright owner. To                      would conflict with, or materially                     requirements in 34 CFR 75.730–732.
                                                  ensure these points are clear, we are                   undermine the ability to protect or                    Our goal is to ensure that the public
                                                  revising the rule to reflect that it does               enforce, other intellectual property                   may benefit from the sharing of those
                                                  not cover copyrightable works that are                  rights or obligations of the grantee or                grant products that may have significant
                                                  not created with Department grant funds                 subgrantee, in existence or under                      value, but not to unduly burden
                                                  or any copyrightable work incorporated                  development, including those provided                  grantees.
                                                  in the grant deliverable that is owned by               under 15 U.S.C. 1051, et seq., 18 U.S.C.                  We agree with the commenters that
                                                  a party other than the grantee or                       1831–1839, and 35 U.S.C. 200, et seq.’’                our intentions and the rule’s scope


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7385

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


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                                                  7386             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

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


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7387

                                                  periods end. As shown elsewhere in this                 grantee or subgrantee, in existence or                 the grant period. These commenters also
                                                  document, there have been many                          under development, including those                     note that many research institutions do
                                                  examples of the broad dissemination                     provided under 15 U.S.C. 1051, et seq.,                not have the expertise or capacity to
                                                  and innovations developed from high-                    18 U.S.C. 1831–1839, and 35 U.S.C. 200,                effectively scale interventions, and even
                                                  quality openly licensed educational                     et seq.’’ We also have included in                     if openly licensed resources were
                                                  content.                                                § 3474.20(d)(1)(vii) examples of                       available, wide dissemination would
                                                     We again note that any derivative                    situations in which the Secretary may                  not occur without these partnerships.
                                                  works created based upon grant                          consider it appropriate to grant an                    Additionally, some commenters stated
                                                  deliverables using non-Department                       individual exception to the open                       that the existing IES goal structure was
                                                  grant funds are not covered by this rule.               licensing requirement. One of these                    the most effective model of ensuring
                                                  Grantees may leverage works created                     examples is the situation in which the                 research-based interventions are scaled
                                                  under an open license to establish or                   grantee’s compliance with the open                     and disseminated widely, and
                                                  maintain a relationship with a private                  licensing requirement would impede                     recommended that IES maintain this
                                                  entity for the purpose of                               the grantee’s or subgrantee’s ability to               goal structure.
                                                  commercialization.                                      form the required partnership to carry                    Discussion: We appreciate the
                                                     The Department appreciates the                       out the purpose of the grant. The other                concern that many IES grantees and
                                                  commenters’ concerns that our                           example is discussed later in this                     education researchers have expressed
                                                  stakeholders may eschew Department                      section.                                               related to implementation of the rule. In
                                                  grants in favor of other funding without                   Comment: Commenters stated their                    general, we note that this rule is
                                                  these requirements. Our competitive                     concerns related to openly licensing                   intended to apply across competitive
                                                  grant programs are intended to support                  research-based interventions resulting                 grant programs, not only to IES grantees.
                                                  equal access to high-quality education                  from the Department’s research grants.                    We agree with commenters that
                                                  for all students. By allowing others to                 These comments fall into three general                 rigorous efficacy testing is necessary to
                                                  freely use, with minimal restrictions,                  categories. First, commenters noted that               ensure high quality resources, including
                                                  the educational resources created with                  grantees often receive research funds to               interventions, products, and
                                                  our funding, we are providing                           produce early prototype models or                      assessments, benefit students. We note
                                                  opportunities for the global community                  interventions that have not yet benefited              that in addition to the early prototype
                                                  of stakeholders to pursue solutions to                  from robust efficacy studies. Openly                   models or interventions themselves, any
                                                  their challenges. As previously                         licensing these resources would allow                  final versions of program support
                                                  mentioned, commercial incentives are                    the public to access them ahead of                     materials necessary to the use of the
                                                  not the only drivers of innovation in the               testing and could lead to adoption of                  prototype model or intervention,
                                                  field of education; similarly, we do not                ineffective or potentially harmful                     including professional development and
                                                  believe economic motive to be the sole                  resources. Commenters noted that this                  training materials, research findings,
                                                  consideration for stakeholders to                       would especially harm disadvantaged                    and documentation of the context and
                                                  participate in our grant programs. We                   populations. Second, commenters stated                 efficacy of the resources created with
                                                  observe that after implementing their                   that the interventions developed                       grant funds would also be made
                                                  similar policy, the Department of Labor                 through research grants are complex to                 available through an open license.
                                                  continued to require applicants to form                 administer, often requiring expert                     Additionally, any materials created as
                                                  public-private partnerships in numerous                 training or technical support in order to              part of IES research grants would also
                                                  notices inviting applicants for                         maintain quality control and ensure                    include rigorous peer-reviewed
                                                  competitive grants. Despite the                         valid outcomes. Commenters noted that                  scholarly publications that would be
                                                  requirement that grantees make                          quality could be diminished through                    available through ERIC. The availability
                                                  copyrightable intellectual property                     uncontrolled adaptations or derivatives                of these supporting materials will allow
                                                  available under a Creative Commons                      that deviate from the evidence base or                 the public to readily discern which
                                                  Attribution (CC BY) license, the many                   context established by the original                    resources could be appropriately used
                                                  programs covered since the enactment                    researchers. Similarly, commenters also                and which resources have not yet
                                                  of their regulation have received a large               stated that in some cases, individuals                 reached maturity. In some cases, these
                                                  pool of applicants. We recognize,                       could deliberately ignore the original                 materials will prescribe the appropriate
                                                  however, that there may be some                         parameters or context established by the               context and correct implementation
                                                  situations where a grantee may have                     researchers and pursue inappropriate                   methodology of the resource. We believe
                                                  difficulty forming a partnership with a                 use. In all of these cases, the reputation             that practitioners should not be denied
                                                  private entity to create a grant                        of the researcher could be compromised                 access to materials because of the
                                                  deliverable. We believe that such                       and the effectiveness of the original                  possibility that they will misunderstand
                                                  situations are best addressed on a case-                resource dismissed.                                    or misuse them. By openly licensing the
                                                  by-case basis and are revising the final                   Third, many commenters noted that                   supporting materials, data, and other
                                                  regulation to include this situation as an              research institutions exercise good                    program support materials, grantees can
                                                  example of where the Secretary may                      stewardship over grant resources and                   ensure that practitioners have the tools
                                                  consider it appropriate to grant an                     already employ a number of strategies to               necessary to understand, learn from,
                                                  exception to the open licensing                         broadly disseminate their findings.                    and replicate deliverables, and to
                                                  requirement.                                            Many commenters also provided                          consult with researchers as appropriate.
                                                     Changes: We have revised                             examples of existing initiatives that                     In response to the commenters’
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                                                  § 3474.20(d)(1)(viii) to provide that the               result in broad dissemination of                       concerns, we make three observations.
                                                  open licensing requirement does not                     research-based interventions. Some of                  First, even before product maturity,
                                                  apply to ‘‘[g]rantees or subgrantees for                these examples included use of strong                  prototypes and early stage research,
                                                  which compliance with these                             partnerships with a commercial partner                 including supporting documentation,
                                                  requirements would conflict with, or                    to allow for continued refinements to                  can greatly benefit other researchers,
                                                  materially undermine the ability to                     the products, reinvestment into future                 allowing them to also test and refine the
                                                  protect or enforce other intellectual                   research, and technical support for                    resource, potentially creating prototypes
                                                  property rights or obligations of the                   implementation, even after the end of                  for different applications. We believe


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                                                  7388             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  this will result in developing resources                regulation does not cover derivative                   making their work known, duplicative
                                                  at a rapid speed and encouraging                        works, funded privately through these                  efforts can be avoided.
                                                  innovation in the educational research                  partnerships.                                             Other commenters stated that the
                                                  field. We note that although peer-                         Finally, we note that this regulation               decision of whether the license is
                                                  reviewed scholarly publications are                     does not alter the structure or statutory              applied prior to the end of the grant
                                                  excepted from this rule, those                          requirements for any existing grant                    period should be made based on the
                                                  publications that are supported by IES                  program, including the goal structure of               goals and circumstances of the grant
                                                  grant funds are subject to the                          IES-funded grant programs. As                          program.
                                                  requirements of the IES’ Policy                         discussed elsewhere in this regulation,                   Discussion: We considered the variety
                                                  Regarding Public Access to Research. As                 peer-reviewed scholarly publications                   of viewpoints reflected in the comments
                                                  noted earlier, the Department is                        that arise from scientific research                    and the variety of grant programs
                                                  exploring other administrative means                    funded, either fully or partially, from                funded by the Department. We believe
                                                  for expanding the requirements                          grants awarded by the Department are                   that it would be difficult to prescribe a
                                                  currently followed by for IES grant-                    excepted from this regulation. This plan               single timing requirement appropriate
                                                  supported peer-reviewed scholarly                       provides access both to research                       for all programs. Depending on the goals
                                                  publications to all Department grants.                  findings and the scientific data,                      of the particular grant program or the
                                                  We believe that the combination of the                  encouraging researchers, practitioners,                individual project proposal, the grantee
                                                  open access to publications and data                    and the general public to test and                     may elect to openly license the
                                                  with the openly licensed resources will                 improve findings and resources and                     intellectual property created through the
                                                  enable the community of education and                   otherwise enhance value for all                        grant before the grant period has ended,
                                                  scientific stakeholders to use the early                stakeholders.                                          though that is not a requirement. The
                                                  research effectively and responsibly.                      Changes: None.                                      final rule does not specify whether
                                                     Second, we share in the concerns                                                                            copyrightable grant deliverables should
                                                                                                          Additional Questions
                                                  related to the misapplication of                                                                               be openly licensed prior to the end of
                                                  scientific research and misuse of                          In the NPRM we posed five questions                 the grant period or after the grant period
                                                  educational tools. Nevertheless, we note                that requested comments on whether                     is over, thereby leaving it to each grant
                                                  that these issues may occur regardless of               the proposed regulations should include                program to decide.
                                                  whether the research or tools are under                 certain additional implementation                         Changes: None.
                                                  copyright or available through an open                  requirements. The responses provided                      Question 2: Should the Department
                                                  license. We also note that members of                   to the five questions are summarized                   include a requirement that grantees
                                                  the public, policymakers, educational                   below.                                                 distribute copyrightable works created
                                                  practitioners, and other stakeholders,                     Question 1: Should the Department                   under a direct competitive grant
                                                  often incorrectly attribute their                       require that copyrightable works be                    program? If yes, what suggestions do
                                                  assertions to researchers, resulting in                 openly licensed prior to the end of the                you have on how the Department should
                                                  loss of reputation to the researcher. We                grant period as opposed to after the                   implement such a requirement?
                                                  do not believe that the root cause of                   grant period is over? If yes, what impact                 Comments: Commenters were divided
                                                  these unfortunate circumstances is the                  would this have on the quality of the                  in their response to the proposed
                                                  availability of resources through an                    final product?                                         requirement for grantees to distribute
                                                  open license. In fact, a machine-                          Comments: Commenters that                           Department-funded works. Many
                                                  readable license format on digital                      responded to this question were divided                commenters supported an additional
                                                  resources may actually facilitate the                   over whether it would be best to require               requirement to distribute Department-
                                                  discovery of the original research and                  that the open licenses be applied prior                funded works. Of these, some
                                                  underlying frameworks for                               to the end of the grant or after the grant             commenters proposed that the
                                                  implementation. We also note that                       is over. In general, all commenters that               Department be nonspecific about the
                                                  separate from the IES Policy Regarding                  opposed the requirements of the NPRM                   method of distribution. One commenter
                                                  Public Access to Research, many                         did not believe that open licenses                     expressed concerns that specificity
                                                  research institutions have already                      should be applied prior to the end of the              would drive away institutions currently
                                                  established faculty open access policies                grant period. These commenters noted                   implementing other distribution
                                                  that enable public access to research                   that this would result in a number of                  methods. Others suggested more
                                                  and data.4                                              negative public consequences. For                      specific methods, including the use of a
                                                     Third, we acknowledge that in many                   example, prior to the end of the grant                 CC BY license or dissemination of
                                                  cases, research entities lack expertise                 period, products or interventions may                  works through online platforms. Some
                                                  and capacity to scale the adoption of                   not yet be complete or useful and may                  of these commenters accompanied their
                                                  new resources and that in many cases,                   harm the public if disseminated too                    suggestions with proposals for
                                                  private entities play an important role in              early or without proper training on their              additional Federal requirements, such
                                                  the iterative improvement of resources,                 implementation. In addition, openly                    as a sustainability plan in the grant
                                                  often contributing funding in the                       licensing and distributing non-final                   application or a final report containing
                                                  process. For the purposes of this rule,                 versions could create confusion for the                a link to the location of the work in an
                                                  the Department believes that the                        public about which version to adopt or                 online repository.
                                                  primary barrier to broad dissemination                  hinder the peer review process.                           Other commenters disagreed with
                                                  is not the lack of capacity; rather it is                  Conversely, some commenters stated                  requiring distribution by grantees. These
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                                                  the lack of access to resources. Even if                that applying open licenses and                        commenters suggested that the
                                                  one research entity does not have the                   distributing materials prior to                        responsibility of distribution resides
                                                  capacity to scale a resource, an open                   completion will give opportunity for                   with the Department, such as through
                                                  license enables other entities, some with               more feedback and review and give the                  the use of the ERIC, an online library of
                                                  greater expertise and resources, to                     grantee additional time to make                        education research and information,
                                                  disseminate them. We note that this                     adjustments or refinements prior to the                sponsored by IES. Similarly, others
                                                                                                          end of the grant period leading to a                   suggested partnership with existing
                                                    4 http://sparcopen.org/coapi-members/.                better final product. In addition, by                  repositories or the creation of another


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7389

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


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                                                  7390             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  development and technical assistance                    Federal agency does not require the                       (2) Tailor its regulations to impose the
                                                  on numerous projects including                          open licensing of its grant deliverables               least burden on society, consistent with
                                                  establishing the Department of Labor’s                  for the relevant grant program.                        obtaining regulatory objectives and
                                                  repository for the TAACCCT grant                                                                               taking into account—among other things
                                                                                                          Executive Orders 12866 and 13563
                                                  program, the National Science                                                                                  and to the extent practicable—the costs
                                                  Foundation National Digital Library of                  Regulatory Impact Analysis                             of cumulative regulations;
                                                  Science, and the California Affordable                     Under Executive Order 12866, the                       (3) In choosing among alternative
                                                  Learning Solutions initiative. This                     Secretary must determine whether this                  regulatory approaches, select those
                                                  commenter noted the importance of                       regulatory action is ‘‘significant’’ and,              approaches that maximize net benefits
                                                  providing an online library of all grant-                                                                      (including potential economic,
                                                                                                          therefore, subject to the requirements of
                                                  funded resources to enable quality and                                                                         environmental, public health and safety,
                                                                                                          the Executive order and subject to
                                                  continuous improvement. In addition,                                                                           and other advantages; distributive
                                                                                                          review by the Office of Management and
                                                  the commenter noted the importance of                                                                          impacts; and equity);
                                                                                                          Budget (OMB). Section 3(f) of Executive
                                                  providing support to institutional                                                                                (4) To the extent feasible, specify
                                                                                                          Order 12866 defines a ‘‘significant
                                                  leaders in developing and implementing                                                                         performance objectives, rather than the
                                                                                                          regulatory action’’ as an action likely to
                                                  a change management strategy for their                                                                         behavior or manner of compliance a
                                                                                                          result in a rule that may—
                                                  institution to locally design and                                                                              regulated entity must adopt; and
                                                                                                             (1) Have an annual effect on the
                                                  implement culturally aligned, locally                                                                             (5) Identify and assess available
                                                                                                          economy of $100 million or more, or
                                                  supported, and collectively valued                                                                             alternatives to direct regulation,
                                                                                                          adversely affect a sector of the economy,
                                                  ecosystems of intellectual property                                                                            including economic incentives—such as
                                                                                                          productivity, competition, jobs, the
                                                  strategies, recognition, and incentives                                                                        user fees or marketable permits—to
                                                                                                          environment, public health or safety, or
                                                  for openly sharing intellectual property,                                                                      encourage the desired behavior, or
                                                  and an institutional mission for                        State, local, or tribal governments or
                                                                                                          communities in a material way (also                    provide information that enables the
                                                  improving society through quality                                                                              public to make choices.
                                                  education.                                              referred to as an ‘‘economically
                                                                                                                                                                    Executive Order 13563 also requires
                                                     One commenter stated that they did                   significant’’ rule);
                                                                                                             (2) Create serious inconsistency or                 an agency ‘‘to use the best available
                                                  not know of any other Federal funding                                                                          techniques to quantify anticipated
                                                  agencies that would make this                           otherwise interfere with an action taken
                                                                                                          or planned by another agency;                          present and future benefits and costs as
                                                  regulation a grant requirement, as it                                                                          accurately as possible.’’ The Office of
                                                  would require forfeiture of intellectual                   (3) Materially alter the budgetary
                                                                                                          impacts of entitlement grants, user fees,              Information and Regulatory Affairs of
                                                  property.                                                                                                      OMB has emphasized that these
                                                     Discussion: We thank these                           or loan programs or the rights and
                                                                                                          obligations of recipients thereof; or                  techniques may include ‘‘identifying
                                                  commenters for sharing their                                                                                   changing future compliance costs that
                                                  experiences. All of the suggestions have                   (4) Raise novel legal or policy issues
                                                                                                          arising out of legal mandates, the                     might result from technological
                                                  been discussed elsewhere in this                                                                               innovation or anticipated behavioral
                                                  regulation, except for the suggestion to                President’s priorities, or the principles
                                                                                                          stated in the Executive order.                         changes.’’
                                                  list metadata on a resource site such as                                                                          We are issuing these final regulations
                                                  Learning Registry. The Department                          This final regulatory action will have
                                                                                                          an annual effect on the economy of                     only on a reasoned determination that
                                                  believes that Learning Registry is a                                                                           their benefits would justify their costs.
                                                  valuable metadata repository for open                   more than $100 million because of the
                                                                                                          benefits that will be realized as a result             In choosing among alternative
                                                  educational resources. Grantees of the                                                                         regulatory approaches, we selected
                                                  Department are encouraged to consider                   of the dissemination of openly licensed
                                                                                                          resources required under this rule.                    those approaches that maximize net
                                                  using Learning Registry or other public,                                                                       benefits. Based on the analysis that
                                                  freely available platforms to enable                    Although the costs associated with this
                                                                                                          rule are relatively low, we believe the                follows, the Department believes that
                                                  sharing of resources.                                                                                          these final regulations are consistent
                                                     In reviewing these comments, we                      benefits from the resources that will be
                                                                                                          readily available to the public through                with the principles in Executive Order
                                                  noted that our proposed rule did not
                                                                                                          broad dissemination will reach more                    13563.
                                                  account for situations in which a grant
                                                                                                          than $100 million. We explain these                       We also have determined that this
                                                  deliverable is jointly funded by both the
                                                                                                          costs and benefits in more detail in the               regulatory action would not unduly
                                                  Department and another Federal agency
                                                                                                          Costs and Benefits section of this                     interfere with State, local, and tribal
                                                  where the other Federal agency does not
                                                                                                          Regulatory Impact Analysis. Therefore,                 governments in the exercise of their
                                                  require the open licensing of its grant
                                                                                                          this final action is ‘‘economically                    governmental functions.
                                                  deliverables for that program. In these
                                                  instances, we recognize that complying                  significant’’ and subject to review by                 Need for Regulatory Action, Potential
                                                  with the Department’s open licensing                    OMB under section 3(f)(1) of Executive                 Impacts, and Costs and Benefits
                                                  requirement may cause confusion                         Order 12866. We have also reviewed
                                                                                                          these regulations under Executive Order                Need for Regulatory Action
                                                  regarding a grantee’s ability to comply
                                                  with the requirements of that other                     13563, which supplements and                             Grantees under the Department’s
                                                  Federal agency regarding the grant                      explicitly reaffirms the principles,                   competitive grant programs create a
                                                  deliverable, so we are revising the                     structures, and definitions governing                  number of copyrightable grant
                                                  regulation to provide that the rule                     regulatory review established in                       deliverables using Department grant
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                                                  would not apply to these types of grant                 Executive Order 12866. To the extent                   funds that may have significant benefit
                                                  deliverables.                                           permitted by law, Executive Order                      for students, parents, teachers, school
                                                     Changes: We have revised                             13563 requires that an agency—                         districts, States, institutions of higher
                                                  § 3474.30(d)(1)(iii) to provide that the                   (1) Propose or adopt regulations only               education, and the public overall. These
                                                  open licensing requirement does not                     upon a reasoned determination that                     copyrightable works are wide ranging in
                                                  apply to grant deliverables that are                    their benefits justify their costs                     nature and include instructional
                                                  jointly funded by the Department and                    (recognizing that some benefits and                    materials, personalized learning
                                                  another Federal agency if the other                     costs are difficult to quantify);                      delivery systems, assessment systems,


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                            7391

                                                  language tools, and teacher professional                student interests to programs, which we                time these awards were made to the 15
                                                  development training modules, just to                   believe would result in the creation of                other grantees, we could assume that 15
                                                  name a few. The Department’s grantees                   fewer resources. These two projects                    times more language learning materials
                                                  creating these works include SEAs,                      would impact approximately the same                    would be made available, or an
                                                  LEAs, IHEs, and non-profit                              number of students, but one approach                   additional 7,500 pieces of openly
                                                  organizations and while the works are                   involves the creation of a large number                licensed content across the different
                                                  created under a specific grant program                  of resources while another invests                     language areas. Moreover, the enhanced
                                                  and therefore may target a specific                     resources towards creation of a platform               availability of these materials
                                                  school or group of students, the                        tool and a smaller number of resources                 potentially would have increased the
                                                  resources are such that other education                 associated with that tool.                             impact of each of the individual centers
                                                  stakeholders would significantly benefit                   Moreover, we believe that our                       by encouraging and supporting vibrant
                                                  from being able to readily and freely                   estimates for the FITW grantees are                    communities of practice focused on
                                                  access them, use them, and in some                      likely to be higher than what we would                 language instruction and learning at
                                                  cases, modify them to address their                     expect for most other Department                       institutions that do not have the
                                                  needs and goals.                                        competitive grant programs, including                  resources themselves. For example, this
                                                     As we note earlier, wide                             those at the higher education level and                would have enabled discovery and use
                                                  dissemination of these types of                         those focused on elementary and                        of resources created by the University of
                                                  copyrightable works has not occurred                    secondary education. For example, in                   Indiana National African Resource
                                                  under the Department’s current                          the higher education space, the Federal                Center, whose lack of broad
                                                  regulations. We found very few                          TRIO programs, which accounted for                     dissemination leaves the public without
                                                  instances in the last decade where                      nearly half of all competitive awards to               information about what resources are
                                                  program offices received a request to                   IHEs in FY 2015, have a more narrowly                  available, where to access any materials,
                                                  make grant-funded resources available                   focused statutory purpose to provide                   or how to seek permission to use any
                                                  under the Federal purpose license.                      basic services (e.g., tutoring, counseling,            resources found. Since this is the only
                                                  However, we do have evidence of the                     mentoring) to needy students using                     African language program in this cohort,
                                                  impacts of open licensing in those                      strategies and generally are less likely to            the result is also the loss of resources for
                                                  competitive grant programs where open                   produce copyrightable resources.                       this entire language family.
                                                  licensing was required or where the                        On the other hand, the Department
                                                  grantee voluntarily openly licensed its                 also funds a number of activities that,                Analysis of Potential Impacts
                                                  copyrightable works.                                    under the final regulations, would be
                                                                                                                                                                    In FY 2016, the Department made
                                                     For example, the Department’s First                  likely to produce significantly higher
                                                                                                                                                                 new and continuation awards under
                                                  in the World (FITW) program has an                      numbers of copyrightable resources than
                                                                                                                                                                 roughly 110 unique discretionary
                                                  existing open licensing requirement and                 FITW grantees. For example, our
                                                                                                                                                                 competitive and non-competitive grant
                                                  thus provides a basis for estimating the                National Language Resource Centers
                                                                                                                                                                 programs that totaled $44.155 billion
                                                  potential benefit of these final                        (LRC) program funds IHEs to research
                                                                                                                                                                 (excluding Pell). Of this total we
                                                  regulations. In FY 2015, the Department                 and develop resources for Less
                                                                                                                                                                 estimate that 66 programs would be
                                                  awarded approximately $60 million in                    Commonly Taught Languages (LCTL),
                                                  FITW funds to 18 institutions of higher                 http://www.nflrc.org/lrc_broc_full.pdf.                subject to the open licensing
                                                  education, research organizations, and                  In the FY 2014–FY 2017 grant cycle, we                 requirements of the final regulations. In
                                                  education agencies. This total included                 awarded approximately $2.8 million to                  addition to the Ready to Learn program,
                                                  16 FITW development grants intended                     16 IHEs to support National Language                   of the 43 programs (roughly $39.932
                                                  to seed and evaluate early stage                        Resource Centers (LRC) for research and                billion in FY 2016) that we estimate
                                                  innovations, where new intellectual                     development of resources for LCTL.                     would be exempt from open licensing,
                                                  property would be created, and two                      There was no requirement for the                       approximately 30 are non-competitive
                                                  validation grants to test at a broad scale              grantees to openly license their                       programs that allocate funds on the
                                                  existing interventions supported by                     resources, but one grantee did so of its               basis of a formula, and approximately
                                                  significant evidence.                                   own volition. Specifically, the                        13 support competitive grants in which
                                                     We estimate that the 16 development                  University of Texas at Austin received                 program funds are only used to support
                                                  grantees will produce at least 1,400 new                approximately $200,000 in FY 2015 to                   activities that clearly fit within one or
                                                  resources that would be openly                          fund the Center for Open Educational                   more or the categorical exemptions in
                                                  licensed, approximately 90 resources                    Resources and Language Learning                        this rule (e.g., approximately 7 are
                                                  per grantee. This estimate is based on                  (COERLL), which creates fully openly                   competitive programs that only support
                                                  work that the FY 2015 grantees project                  licensed language and pedagogical                      fellowships or scholarship awards to
                                                  they will do over a four-year period and                materials for 16 languages, in addition                individuals, and the other 6 provide
                                                  we generally anticipate that most                       to an open platform for discovery,                     support for general operating expenses).
                                                  resources would be available for                        remix, and repurposing of these                           Within the group of 66 competitive
                                                  dissemination and licensing in the last                 language resources, and open research.                 grant programs (which received $4.223
                                                  two years of the grant period. We also                  The Department estimates that there are                billion in FY 2016) subject to the rule,
                                                  note that the total number of resources                 approximately 500 educational                          not all grantees will produce intellectual
                                                  to be created across the 16 grantees                    resources, including curricula, lessons,               property. For example, in the IDEA
                                                  varies widely as a result of the different              worksheets, assessments, textbooks,                    Personnel Development to Improve
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                                                  activities and innovative approaches                    videos, podcasts, research studies, open               Services and Results for Children with
                                                  proposed in their projects. For example,                apps for student learning, and                         Disabilities Program, many cohorts of
                                                  CSU-Los Angeles is proposing to                         interactive platform, materials, openly                grantees do not produce intellectual
                                                  redesign every first year science course,               licensed on the COERLL Web site                        property at all and, therefore, this rule
                                                  resulting in the largest estimate of                    (https://www.coerll.utexas.edu/coerll/).               would not apply to those specific
                                                  resources created, while Delaware State                    Based on the experience with UT-                    grantee cohorts. We note that the
                                                  is proposing to develop an analytics                    Austin, we believe that if an open                     required activities in grant competitions
                                                  framework and tool for matching                         license requirement were in place at the               often change over time, so the impact of


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                                                  7392             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  the rule may vary from one competition                  digital tools and devices means that                   often involves provision of services
                                                  and cohort to the next.                                 grantees will be creating and refining                 (e.g., tutoring, counseling, mentoring),
                                                    In addition, in some cases, only a                    grant deliverables in digital formats that             and that grantees under such programs
                                                  portion of activities and funding would                 facilitate dissemination at no additional              are much less likely to produce
                                                  result in the creation of resources that                technology cost. Second, grantees may                  copyrightable resources. But, again, for
                                                  would be required to be openly licensed                 readily access and use a number of free                purposes of developing an upper bound
                                                  under the final regulations. For                        methods to distribute digital openly                   estimate we analyzed a handful of
                                                  example, in the case of IES’s Education                 licensed materials, including publicly                 grantees for which dissemination of
                                                  Research, Development, and                              available Web sites, content, or                       products or content is a core purpose of
                                                  Dissemination program, grants are                       metadata repositories at no cost. Thus,                their grant. Since dissemination is a
                                                  awarded competitively to support                        we expect that grantees generally will be              core activity for grantees included in
                                                  research programs that both create                      able to meet the dissemination                         this sample, we know these grantees are
                                                  interventions and resources and peer-                   requirements of the final regulations                  likely to generate significantly more
                                                  reviewed publications that arise from                   without incurring additional technology                products requiring dissemination each
                                                  scientific research (receiving an                       infrastructure costs.                                  year than grantees focusing on other
                                                  exception). The Department also has                                                                            activities such as service provision.
                                                  developed an agency-level exceptions                    Analysis of Technology Labor Costs
                                                                                                                                                                 Further, since it generally takes grantees
                                                  process where any program could                            Even though there will generally be                 some time to scale up their projects we
                                                  ultimately be granted either partial or                 no additional costs associated with                    assume, taking into account the past
                                                  complete exception to the requirements                  technology infrastructure, we estimate                 production rate of grantees, the
                                                  of the final regulations. For all of these              that over a period of 10 years there may               following ‘‘outlay’’ rate (over an
                                                  reasons, we estimate that the potential                 be a likely high-end labor cost of $22.6               assumed project length of 4 years) for all
                                                  impact of these final regulations will be               million. This cost represents an upper                 grantees affected by the rule: Year One
                                                  limited to a relatively small but                       bound estimate of the labor necessary to               5 copyrightable products produced and
                                                  important subset of the programs and                    disseminate copyrightable products                     disseminated; Year Two 15
                                                  projects funded by the Department in                    expected to be generated by all new ED                 copyrightable products produced and
                                                  any given year. The final regulations                   grantees over a period of 10 years. To                 disseminated; Year Three 20
                                                  will ensure that those programs and                     develop this upper bound estimate, we                  copyrightable products produced and
                                                  projects that do produce copyrightable                  started by analyzing the volume of ED                  disseminated; and Year Four 50
                                                  educational materials and resources,                    grantees that could potentially be                     copyrightable products produced and
                                                  including materials and resources                       impacted by the rule. In 2016, the most                disseminated.
                                                  proven effective through rigorous                       recent year preceding this final rule, the                Assuming a total of 1,641 new
                                                  evaluation, make such resources freely                  Department made approximately 5,470                    competitive grantees would generate
                                                  and widely available to the public for                  new competitive grant awards. We                       copyrightable product during the first
                                                  the potential benefit of students,                      know not all of these grantees will                    year the rule is in effect, with each new
                                                  teachers, and schools across the nation.                generate copyrightable products                        grantee producing 5 total deliverables in
                                                                                                          requiring dissemination under this final               the first year, the overall volume of
                                                  Potential Costs and Benefits                            rule, so for purposes of this upper                    resources requiring dissemination
                                                    The final regulations will not impose                 bound estimate we estimate that the                    would be 8,205 (1,641 grantees
                                                  significant costs on entities that receive              Department will continue to make 5,470                 producing an average of 5 copyrightable
                                                  assistance through the Department’s                     new competitive grants each year, and                  products each). In the second year, with
                                                  competitive grant programs. We note                     that 30 percent of these awards will                   new grantees expected to produce 15
                                                  that annual variation in the total volume               produce copyrightable content and                      total deliverables on average, the overall
                                                  of new and continuing discretionary                     consequently will be affected by the                   volume of copyrightable products
                                                  grant awards, as well as in the purposes                final rule. Further, we assume that for                would be 49,230 (3,282 grantees
                                                  and priorities associated with such                     each year the rule is in effect after year             producing an average of 15
                                                  grants, limits the precision of our                     one, every cohort of continuation                      copyrightable products). In year three
                                                  estimates, but we estimate that the                     awards will also be affected by the final              the overall volume would increase to
                                                  upper bound total cost of these                         rule. So, based on past data, we estimate              98,460 (4,923 grantees producing and
                                                  regulations, over ten years, will be                    that in the first year the final rule takes            average of 20 copyrightable products),
                                                  approximately $22.6 million in labor                    effect 1,641 grants will generate                      and by year 4 this number would be
                                                  fees, at an annualized rate of $3.2                     copyrightable products (30 percent of                  328,200 (6,564 grantees producing an
                                                  million per year, with no additional                    5,470 total new grant awards made), and                average of 50 copyrightable products).
                                                  costs to support technology                             that by year four a total of 6,564 new                    Finally, we estimate the likely time
                                                  infrastructure. This estimate assumes a                 and continuation awards would be                       and salary that would be required for
                                                  discount rate of three to seven percent.                impacted by the rule. Likewise, from                   individual grantees to complete these
                                                                                                          years 4 through 10 this number plateaus                requirements. As an example of the
                                                  Analysis of Technology Infrastructure                   and remains stable at 6,564.                           specific steps that might be necessary
                                                  Costs                                                      Next, consistent with the estimates in              for an individual grantee to complete
                                                     While the benefits of the final                      the Need for Regulatory Action section,                dissemination requirements envisioned
                                                  regulations depend on the broad,                        we estimate that each grantee will                     in the final rule, the grantee would:
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                                                  accessible dissemination of                             generate an average of approximately 90                   1. Use the Creative Commons License
                                                  copyrightable educational materials and                 copyrightable products requiring                       tool to select and apply the symbol to
                                                  resources, we estimate that such                        dissemination over the duration of their               the work and generate the machine
                                                  dissemination will result in no                         grant award (typically ED grantees have                readable code and affix to the work
                                                  additional technology infrastructure                    4 or 5 year grant performance periods).                (http://www.creativecommons.org/
                                                  costs to grantees subject to the open                   As stated previously, we know that                     chooser)
                                                  licensing requirements, for two reasons.                many non-exempt programs have a                           2. Upload the resource and metadata,
                                                  First, the near-universal adoption of                   narrowly focused statutory purpose that                including the name, description,


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                                                                    Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                         7393

                                                  license, publisher, and URL of the                      license will differ depending on the                   marketplace, or from entering into
                                                  resource, to a shared learning resource                 type of work created, applying an open                 private, commercial relationships with
                                                  repository or educator Web site:                        license to a grant product typically                   select commercial entities to distribute
                                                     We estimate the time for completion                  involves the addition of a brief license               derivative works based upon the openly
                                                  of Steps 1 and 2 to be approximately 30                 identification statement or insertion of a             licensed works. In this case, the
                                                  minutes total per resource. We also                     license symbol or device. This could                   grantee’s expertise as the original
                                                  recognize that the actual time for                      occur following the development of the                 creator could allow it to retain market
                                                  completion may be substantially shorter                 product, at the same time that the                     leverage, if its commercial product
                                                  in the case of automated or bulk                        disclaimer currently required under 34                 demonstrated market value that
                                                  resource uploads. Assuming a pay rate                   CFR 75.620 is applied.                                 outcompeted other commercial
                                                  of $15/hour for data entry,5 new                           In this context, the regulations could              derivatives. We believe that the grantee
                                                  grantees generating 5 products in the                   reduce commercial incentives for an                    may be best positioned to create
                                                  first year would require approximately                  eligible entity to apply to participate in             derivative works with the most
                                                  2.5 hours per year in total labor to                    a competitive grant program. For                       economic value since it best
                                                  complete these steps at an annualized                   example, we believe that under some                    understands both the present utility and
                                                  cost of approximately $38 per grantee.                  competitive grant programs, grant                      future potential of the product and can
                                                  By year four of implementation these                    recipients may produce materials that                  anticipate the enhancements that would
                                                  estimates would plateau at                              will be subsequently sold or licensed to               need to be taken to address unmet
                                                  approximately 45 hours required per                     third parties, such as publishing                      market needs.
                                                  year in total labor costs at an annualized              companies or others in the field.                         Third, based on the Department’s past
                                                  cost of approximately $675 per grantee.                 Although an open license does not                      grant making experiences, relatively few
                                                     Taking into account these                            preclude the grantee or any individual                 grantees have developed and marketed
                                                  assumptions, we estimate that a                         from developing commercial products                    copyrighted works paid for with
                                                  reasonable upper bound estimate of the                  and derivatives from the grant funded                  Department funds. In those cases, the
                                                  maximum likely labor costs for all                      material, it could diminish certain                    open license requirement would not
                                                  expected grantees to implement this                     competitive advantages that these                      preclude their ability to continuously
                                                  final rule over a period of 10 years to be              grantees currently possess as the                      iterate and improve their product
                                                  $22.6 million, at an average total annual               copyright holder. In addition,                         through copyrighted commercial
                                                  cost of $2.26 million.                                  publishers and other third parties may                 derivatives.
                                                                                                          incur loss of revenue since their                         We further note that in the
                                                  Other Potential Costs
                                                                                                          commercial product will potentially                    competitions in which we required that
                                                     Under current regulations, title to                  compete with freely available versions                 grant-funded copyrightable works be
                                                  intellectual property acquired under                    of a similar product or may hesitate to                openly licensed, it was not our
                                                  Department grant funds, including                       enter into licensing agreements with                   experience that the requirement
                                                  copyright, vests in the grantee. With                   grantees.                                              deterred grantees from applying or
                                                  respect to copyrighted works, under 2                      In response to these concerns, we note              attracting partners. The two rounds of
                                                  CFR 200.315(b), the Department also                     that derivative works built upon the                   FITW grant competitions attracted over
                                                  reserves a royalty-free, non-exclusive,                 Department funded copyrightable works                  500 applications in FY 2014 for 24
                                                  and irrevocable right to reproduce,                     using non-Department funds are                         awards and over 300 applicants in FY
                                                  publish, or otherwise use for Federal                   considered new works to the extent of                  2015 for 18 awards. We have not heard
                                                  purposes, and to authorize others to do                 the modifications and are not covered                  from grantees that attracting partners
                                                  so. No further action is necessary to                   by this regulation. As long as the grantee             has been or would be problematic. In
                                                  designate these rights. Grantees may                    or subgrantee does not elect an open                   addition, one of the considerations for
                                                  establish terms and conditions that                     license with a noncommercial use                       granting a program level exception will
                                                  permit use of their works to any member                 requirement, using non-Department                      be whether the open licensing
                                                  of the public, for each instance of use or              funds, any other entity can improve                    requirement would impede the grantee’s
                                                  for each created work. That the                         upon the grant-funded copyrightable                    ability to form the required partnerships
                                                  Department does not frequently exercise                 works resulting in a derivative work that              necessary to carry out the purpose of the
                                                  its Federal purpose license may create                  can be commercialized for financial gain               grant. Thus, we believe we can address
                                                  the false impression that any grantee                   or as part of a sustainability plan. For               this concern through our exceptions
                                                  can use the copyrighted works it creates                purposes of clarity, noncommercial                     process.
                                                  with Federal grant funds for revenue                    licenses would not limit the ability of
                                                                                                                                                                 Benefits
                                                  generating purposes without any                         grantees to commercialize their own
                                                  concern that third parties will have free               derivative works. It is the underlying                    We believe that the benefits of the
                                                  access to those materials for Federal                   Department grant-funded copyrightable                  open licensing requirement in the
                                                  purposes.                                               works that will be freely available to the             education field will significantly
                                                     This final rule requires that grantees               public. This allows multiple entities to               outweigh the costs our grantees might
                                                  openly license copyrightable grant                      enter into a commercial market for                     incur. The education sector has had
                                                  deliverables created with Department                    derivative works, potentially resulting                considerable recent experience with
                                                  funds to enable the public to use the                   in multiple derivative products. In the                successful implementation of open
                                                  work without restriction, so long as the                event that a grantee or subgrantee                     licenses as a mechanism that enables
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  public provides attribution to the                      selects an open license with a                         dissemination, broad access, and use.
                                                  copyright holder. While the type of                     noncommercial use requirement,                         Open licenses have enabled the
                                                                                                          members of the public would likely                     Department’s own grantees, including
                                                    5 Unless otherwise noted, all hourly wages are
                                                                                                          need to contact the grantee or                         the New York State Department of
                                                  non-loaded wage rates and are based on median           subgrantee directly in order to obtain                 Education (NYSED) to have broad
                                                  hourly earnings as reported in the May 2014
                                                  National Occupational Employment and Wage               broader usage rights.                                  reaching impacts and enabled
                                                  Estimates from the Bureau of Labor Statistics (see         Nothing in this regulation prevents                 collaboration that has resulted in
                                                  www.bls.gov/oes/current/999201.htm).                    the grantee itself from entering this                  significant cost savings for SEAs, LEAs,


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                                                  7394             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  and other stakeholders. In the case of                  online professional development                        surveys; a teacher professional
                                                  NYSED, in 2010, the Department                          courses for teachers on how to use OER                 development digital badge system;
                                                  awarded New York State Department of                    for math and science instruction in their              research on the perception and use of
                                                  Education (NYSED) approximately $700                    adult education classrooms that are                    foreign language OER; and a Web site
                                                  million in funding through the Race to                  freely available in multiple                           supporting a community of practice on
                                                  the Top (RTT) grant program. NYSED                      repositories.8 Adult educators, working                Open Education in language learning.
                                                  invested $12.9 million of that award in                 in Teacher User Groups located, used,                     Finally, the Department’s FITW grant
                                                  the creation of openly licensed                         evaluated, and shared science and math                 program has required grantees to openly
                                                  curriculum in math and English                          OERs that are appropriate for adult                    license intellectual property.9 The
                                                  Language Arts called ‘‘EngageNY’’ that                  education classes. The reviews are                     online remediation tool created by the
                                                  was made freely available to the public                 posted within www.OERCommons.org,                      Southern New Hampshire University
                                                  under a Creative Commons Non-                           part of a newly formed ‘‘adult                         under this grant program will help
                                                  Commercial Share-Alike (CC–SA–NC)                       education’’ category with over 2,400                   underprepared, underrepresented, and
                                                  license.6 The EngageNY curriculum                       resources that can now be searched and                 low-income working adults obtain a
                                                  created by NYSED has been                               accessed freely through this repository.               postsecondary credential and reduce the
                                                  implemented statewide in New York.                      The project also developed online                      time to degree completion. Under the
                                                  Because this curriculum is openly                       professional development courses for                   terms of the grant, the open license will
                                                  licensed, California, Louisiana, and                    teachers on how to use OER that are                    allow any other IHE or adult education
                                                  Washington have adapted and used                        freely available in multiple national                  provider to use this tool to serve the
                                                  these materials statewide as a                          repositories for math and science                      working adults in its service areas,
                                                  foundation for their standards aligned                  instruction in their adult education                   without incurring costs or duplicating
                                                  curriculum. Additionally, teachers at                   classrooms. The Department’s                           efforts of development.
                                                  schools across the nation have been                     investment of funding has resulted in a                   Elsewhere in the Federal government,
                                                  freely accessing, using, and adapting the               valuable resource that is searchable on                as noted previously, the Department of
                                                  EngageNY content.7                                      public repositories and widely available               Labor was the earliest user of open
                                                     The open license has also enabled                    to members of the public that would not                copyright licenses. The Department of
                                                  other organizations to create derivative                have been otherwise reached by the                     Labor first piloted the open license
                                                  works that enhance the original                         Department’s National Activity                         requirement in FY 2011, through the $2
                                                  curriculum. For example, UnboundED,                     Activities funds.                                      billion TAACCCT grant program, which
                                                  a non-profit educational organization,                     Under the National Language                         required all new resources created with
                                                  has adapted the original materials                      Resource Centers (LRC) grant program,                  TAACCCT funding to be made available
                                                  created by the grant, developed                         the Department awarded funds to IHEs                   under CC BY license.10 With this
                                                                                                          for research and development of                        requirement, TAACCCT grantees have
                                                  supplemental digital content, English
                                                                                                          resources for Less Commonly Taught                     created thousands of openly licensed
                                                  language learner support, and is offering
                                                                                                          Languages (LCTL). Though there was no                  learning resources that have been
                                                  curated sets of these materials to the
                                                                                                          specific requirement for the grantees to               downloaded and reused hundreds of
                                                  public at no cost. In addition to the
                                                                                                          openly license their resources, one                    thousands of times, including courses,
                                                  content, UnboundED has developed
                                                                                                          grantee did choose to do so. As                        curriculum, modules, and assessments
                                                  new teacher professional development
                                                                                                          previously discussed, the University of                that are freely available at https://
                                                  materials and offers paid teacher
                                                                                                          Texas at Austin created the Center for                 www.skillscommons.org.11 The open
                                                  training on using these and other open
                                                                                                          Open Educational Resources and                         resources have enabled partnerships
                                                  resources. Thus, the open license has
                                                                                                          Language Learning (COERLL), which                      and collaborations between colleges,
                                                  enabled a single investment to result in                                                                       with other Federal agencies, State
                                                                                                          creates fully openly licensed language
                                                  broad, national dissemination and                                                                              agencies, and even international
                                                                                                          and pedagogical materials for 16
                                                  stimulated a derivative marketplace of                                                                         education systems and expanded the
                                                                                                          languages, in addition to an open
                                                  services and supplemental content.                                                                             investment beyond one single grantee to
                                                                                                          platform for discovery, remixing, and
                                                  Since the EngageNY content is freely                                                                           a broad range of stakeholders. For
                                                                                                          repurposing of these language resources,
                                                  available, other teachers, SEAs, and                                                                           example, an openly licensed basic
                                                                                                          and open research. There are hundreds
                                                  LEAs do not have to duplicate                                                                                  computer skills training online course
                                                                                                          of different and diverse open materials,
                                                  investments in curricula in these same                  including curricula, lessons,                          (BITS) 12 created by the Wisconsin
                                                  content areas, resulting in a more                      worksheets, assessments, textbooks,                    Technical College system is being used
                                                  efficient use of resources.                             videos, podcasts, research studies, open               by the Ohio Workforce Investment
                                                     In addition, between 2012 and 2015,                  apps for student learning, and                         board to provide computer training to
                                                  the Office of Career Technical and Adult                interactive platform, materials openly                 adults at 89 American Job Centers
                                                  Education (OCTAE) invested national                     licensed on their Web site available                   statewide, has been used across the 15
                                                  activities funds in accelerating the                    under an open license and publically                   community colleges in the Iowa
                                                  teaching and learning of STEM                           available on their Web site. These                     Community College System, and is
                                                  competencies through high-quality                       resources include language learning                    being customized by the Technical
                                                  OERs and high-quality adult education                   materials such as OER for K’ichee’                     College System of Georgia. Competency
                                                  instruction of STEM by funding adult                    Maya, an indigenous language spoken in                 based training along aerospace and
                                                  educators who located, used, evaluated,                 Guatemala; software that allows a group                energy career pathways developed by
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  and shared science and math OER that                    of users to annotate the same text
                                                  are appropriate for adult education                     together; a series of native speaker                     9 http://www2.ed.gov/programs/fitw/index.html
                                                  classes. The project also developed                                                                            and https://www.federalregister.gov/d/2014-11463/
                                                                                                            8 https://lincs.ed.gov/programs/oerstem and          p-188.
                                                    6 https://creativecommons.org/licenses/by-nc-sa/                                                               10 https://creativecommons.org/licenses/by/4.0.
                                                                                                          http://www2.ed.gov/rschstat/eval/sectech/factsheet/
                                                  3.0/.                                                   open-education-resources-stem-teaching.html              11 https://wdr.doleta.gov/directives/corr_doc.cfm?
                                                    7 http://www.rand.org/content/dam/rand/pubs/          https://lincs.ed.gov/programs/oerstem and http://      docn=4109.
                                                  research_reports/RR1500/RR1529/RAND_                    www2.ed.gov/rschstat/eval/sectech/factsheet/open-        12https://www.skillscommons.org/handle/

                                                  RR1529.pdf.                                             education-resources-stem-teaching.html.                taaccct/6799.



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                                                                            Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                                                                                        7395

                                                  consortia of community colleges in                                              communities of practice for teaching                                             students have purchased over 5,000
                                                  Washington State and Arizona and                                                and learning with digital resources. In                                          copies of the book for approximately
                                                  major employers and industry partners                                           public comments submitted by                                                     $15. These regulations build on the
                                                  were adapted through Rutas (Routes), a                                          OpenStax, it was noted that its openly                                           lessons learned through these efforts
                                                  USAID-funded workforce development                                              licensed college textbooks, first                                                and seek to scale the benefits of these
                                                  program operating along Mexico’s                                                introduced in 2012, are currently used                                           early successes across multiple
                                                  northern border. Relying on the open                                            by more than 650,000 students in 1,600                                           Department competitive grant programs
                                                  license, USAID grantees were able to                                            educational institutions in the United                                           and education stakeholder groups.
                                                  translate the curricula into Spanish,                                           States alone, saving those students                                                 In sum, we believe that these
                                                  rather than using funds to create their                                         $66,000,000 in that short span of time.16                                        regulations will help to ensure the
                                                  own materials from scratch, and created                                         Despite not expending any resources on
                                                                                                                                                                                                                   broader and more effective
                                                  additional educational pathways                                                 marketing activities, their textbooks
                                                                                                                                                                                                                   dissemination of Department grant-
                                                  suitable for the Mexican technical high                                         have been downloaded by three million
                                                                                                                                                                                                                   funded works to the public. Department
                                                  school system.13 In each of these                                               users worldwide. More than the broad
                                                                                                                                                                                                                   stakeholders, such as LEAs, SEAs, IHEs,
                                                  examples, an open license allowed uses                                          dissemination of the textbooks, the open
                                                                                                                                                                                                                   students, and others beyond direct grant
                                                  that would have otherwise involved                                              licenses have enabled an ecosystem of
                                                                                                                                                                                                                   recipients would be able to freely use
                                                  separate and duplicative investments,                                           more than 38 different for-profit and not
                                                                                                                                                                                                                   and access the technology and high-
                                                  either by the same or separate Federal                                          for-profit organizations to develop
                                                                                                                                                                                                                   quality materials. The framework
                                                  agency, by a State agency, or through                                           content in interactive and adaptive
                                                                                                                                                                                                                   established by these regulations will
                                                  other public funding, and has resulted                                          learning systems and through other
                                                  in significant discount to the public.                                          ancillary products, providing greater                                            also result in greater transparency and
                                                  Because of these early successes, the                                           reach than OpenStax could have                                                   efficiencies in how these stakeholders
                                                  Department of Labor expanded the                                                achieved on its own. Similarly the                                               and other members of the public can
                                                  requirement across the agency through                                           Washington State Board for Community                                             access these valuable educational
                                                  regulation 14 and is the first Federal                                          and Technical Colleges (SBCTC), the                                              resources.
                                                  Agency to require grantees to apply                                             State agency that instituted the nation’s                                        Accounting Statement
                                                  Creative Commons Attribution licenses                                           first open licensing policy, did so to
                                                  to all grant funded materials.                                                  address issues of educational access.                                               As required by OMB Circular A–4
                                                     Privately funded openly licensed                                             Since its inception in 2010,17 the policy                                        (available at www.whitehouse.gov/sites/
                                                  projects also have a long history of                                            has been implemented for competitive                                             default/files/omb/assets/omb/circulars/
                                                  creating educational resources with                                             awards funded or managed by SBCTC                                                a004/a-4.pdf) in the following table we
                                                  significant benefit to the public. For                                          totaling more than $25,000,000. The end                                          have prepared an accounting statement
                                                  example, organizations such as Rice                                             products from these projects have been                                           showing the classification of the
                                                  University’s OpenStax and California                                            widely distributed with a CC BY license                                          expenditures associated with provisions
                                                  State University’s Multimedia                                                   benefiting faculty members and the                                               of these final regulations. This table
                                                  Educational Resource for Learning and                                           students across the country. For                                                 provides our best estimate of the
                                                  Online Teaching (MERLOT) 15 have over                                           example, a textbook developed during                                             changes in annual monetized costs,
                                                  20 years of experience creating and                                             one of the competitive grant projects has                                        benefits, and transfers as a result of the
                                                  curating OER and developing national                                            been downloaded 127,000 times and                                                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                                                         supplemental priorities provide                                                     We also considered whether we could
                                                     In determining whether to pursue                                             opportunities for program offices to                                             instead license all copyrightable
                                                  regulatory action, we first considered                                          select or exempt certain grant programs                                          material to the public using our Federal
                                                  other options that might accomplish our                                         from this requirement as appropriate, it                                         purpose license. This approach would
                                                  goals of enhancing dissemination and                                            would only lead to change program-by-                                            allow for access to and dissemination of
                                                  transparency. First, we considered                                              program. We believe that it will be far                                          grant-funded resources. However, as
                                                  whether we should establish an open                                             more efficient to establish the                                                  previously discussed, the Federal
                                                  licensing requirement as a supplemental                                         requirement as a general rule for our                                            purpose license requires significantly
                                                  priority, creating an authority for the                                         competitive grant programs, while also                                           increased administrative capacity at the
                                                  Department to require open licensing in                                         building in the program-level and                                                Department. From an administrative
                                                  any appropriate grant program for fiscal                                        grantee exceptions process when an                                               perspective, use of the Federal purpose
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  year 2017 and future years. Although                                            exception is appropriate.                                                        license places the burden on the
                                                    13 http://blogs.iadb.org/energia_es/2016/02/17/                               cost-principles-and-audit-requirements-for-federal-                              Authorizing legislation: RCW 28A.300.803 created
                                                  how-to-build-a-renewable-energy-future-in-mexico/;                              awards.                                                                          the Open Education Resources project to create
                                                                                                                                    15 https://www.merlot.org.                                                     openly licensed K–12 resources aligned to Common
                                                  http://www.iyfnet.org/blog/poised-take-mexican-
                                                  youth-prepare-aerospace-careers.                                                  16 https://openstax.org/impact.                                                Core standards: http://app.leg.wa.gov/rcw/
                                                    14www.federalregister.gov/articles/2015/12/30/                                  17 www.sbctc.edu/resources/documents/colleges-                                 default.aspx?cite=28A.300.803. See also: http://
                                                  2016-32725/uniform-administrative-requirements-                                 staff/programs-services/elearning-open-education/                                www.k12.wa.us/Communications/
                                                                                                                                  open-licensing-policy-board-resolution.pdf.                                      PressReleases2016/GoOpen.aspx.



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                                                  7396              Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  Department to exercise the license for                  burden. This change request has been                   List of Subjects in 2 CFR Part 3474
                                                  each program and grantee and                            approved by OMB.                                          Accounting, Administrative practice
                                                  copyrightable work, and is therefore not                  A Federal agency may not conduct or
                                                                                                                                                                 and procedure, Adult education, Aged,
                                                  an efficient approach. Each grantee                     sponsor a collection of information
                                                                                                                                                                 Agriculture, American Samoa, Bilingual
                                                  already has direct control over its work,               unless OMB approves the collection
                                                                                                                                                                 education, Blind, Business and
                                                  can use Department grant funds to                       under the PRA and the corresponding
                                                                                                                                                                 industry, Civil rights, Colleges and
                                                  implement the open licensing                            information collection instrument
                                                                                                                                                                 universities, Communications,
                                                  requirement, and is in a far better                     displays a currently valid OMB control
                                                                                                                                                                 Community development, Community
                                                  position than the Department to make                    number. Notwithstanding any other
                                                                                                          provision of law, no person is required                facilities, Copyright, Credit, Cultural
                                                  the work publicly available directly.                                                                          exchange programs, Educational
                                                  Therefore, we believe this final rule will              to comply with, or is subject to penalty
                                                                                                          for failure to comply with, a collection               facilities, Educational research,
                                                  greatly expand the scope of                                                                                    Education, Education of disadvantaged,
                                                  dissemination compared with what the                    of information if the collection
                                                                                                          instrument does not display a currently                Education of individuals with
                                                  Department could achieve.                                                                                      disabilities, Educational study
                                                     The Department recognizes that the                   valid OMB control number.
                                                                                                            Intergovernmental Review: These final                programs, Electric power, Electric
                                                  variety of our programs require grantees
                                                                                                          regulations affect direct grant programs               power rates, Electric utilities,
                                                  to adopt a wide range of strategies for
                                                                                                          of the Department that are subject to                  Elementary and secondary education,
                                                  implementation. As previously
                                                                                                          Executive Order 12372 and the                          Energy conservation, Equal educational
                                                  discussed, we believe this final rule
                                                                                                          regulations in 34 CFR part 79. One of                  opportunity, Federally affected areas,
                                                  advances our goals of broad
                                                                                                          the objectives of the Executive order is               Government contracts, Grant programs,
                                                  dissemination by requiring an open
                                                                                                          to foster an intergovernmental                         Grant programs-agriculture, Grant
                                                  license that does not restrict the
                                                                                                          partnership and a strengthened                         programs-business and industry, Grant
                                                  distribution of derivative works, such as
                                                                                                          federalism. The Executive order relies                 programs-communications, Grant
                                                  through commercial channels, or create
                                                                                                          on processes developed by State and                    programs-education, Grant programs-
                                                  additional restrictions on future
                                                                                                          local governments for coordination and                 energy, Grant programs-health, Grant
                                                  licensing of derivative works not created
                                                                                                          review of proposed Federal financial                   programs-housing and community
                                                  with Department grant funds. We
                                                                                                          assistance.                                            development, Grant programs-social
                                                  recognize that in some instances,
                                                                                                            This document provides early                         programs, Grant administration, Guam,
                                                  placing limitations on the license (e.g.
                                                                                                          notification of our specific plans and                 Home improvement, Homeless,
                                                  non-commercial licenses) or restricting
                                                                                                          actions for these programs.                            Hospitals, Housing, Human research
                                                  the ability to use/reuse materials may be
                                                                                                                                                                 subjects, Indians, Indians-education,
                                                  appropriate and we are committed to                     Assessment of Educational Impact                       Infants and children, Insurance,
                                                  working with grantees to develop
                                                                                                             In the NPRM we requested comments                   Intergovernmental relations,
                                                  licensing strategies that are aligned to
                                                                                                          on whether the proposed regulations                    International organizations, Inventions
                                                  their grant projects and that are
                                                                                                          would require transmission of                          and patents, Loan programs, Loan
                                                  consistent with the goals of the final
                                                                                                          information that any other agency or                   programs social programs, Loan
                                                  rule.
                                                     We also recognize that there will be                 authority of the United States gathers or              programs-agriculture, Loan programs-
                                                  cases where implementation of the                       makes available. We received no                        business and industry, Loan programs-
                                                  requirements of this regulation would                   comments.                                              communications, Loan programs-
                                                                                                             Accessible Format: Individuals with                 energy, Loan programs-health, Loan
                                                  be inconsistent with statutory
                                                                                                          disabilities can obtain this document in               programs-housing and community
                                                  requirements of the grant programs or
                                                                                                          an accessible format (e.g., braille, large             development, Manpower training
                                                  the Department’s general goals. In cases
                                                                                                          print, audiotape, or compact disc) on                  programs, Migrant labor, Mortgage
                                                  such as those, the Secretary retains the
                                                                                                          request to the person listed under FOR                 insurance, Nonprofit organizations,
                                                  ability to make exceptions to the open
                                                                                                          FURTHER INFORMATION CONTACT.                           Northern Mariana Islands, Pacific
                                                  licensing requirement for those                            Electronic Access to This Document:
                                                  programs on a case-by-case basis under                                                                         Islands Trust Territories, Privacy,
                                                                                                          The official version of this document is               Renewable Energy, Reporting and
                                                  2 CFR 3474.5(a) 18 and 2 CFR 200.102(b)                 the document published in the Federal
                                                  and (c).                                                                                                       recordkeeping requirements, Rural
                                                                                                          Register. Free Internet access to the                  areas, Scholarships and fellowships,
                                                  Paperwork Reduction Act of 1995                         official edition of the Federal Register               School construction, Schools, Science
                                                    Section 3474.20(c) contains an                        and the Code of Federal Regulations is                 and technology, Securities, Small
                                                  information collection requirement.                     available via the Federal Digital System               businesses, State and local governments,
                                                  Under the Paperwork Reduction Act of                    at: www.gpo.gov/fdsys. At this site you                Student aid, Teachers,
                                                  1995 (PRA) (44 U.S.C. 3507(d)), the                     can view this document, as well as all                 Telecommunications, Telephone, Urban
                                                  Department has submitted a copy of this                 other documents of this Department                     areas, Veterans, Virgin Islands,
                                                  section as part of a change request to                  published in the Federal Register, in                  Vocational education, Vocational
                                                  OMB for its review under OMB Control                    text or Adobe Portable Document                        rehabilitation, Waste treatment and
                                                  Number(s) 1894–0006, and 1894–0009                      Format (PDF). To use PDF you must                      disposal, Water pollution control, Water
                                                  to reflect this new requirement. There                  have Adobe Acrobat Reader, which is                    resources, Water supply, Watersheds,
                                                  will be no increase or decrease in                      available free at the site.                            Women.
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                                                                             You may also access documents of the
                                                                                                                                                                   Dated: January 11, 2017.
                                                    18 2CFR 3474.5(a), ‘‘ . . . the Secretary of
                                                                                                          Department published in the Federal
                                                                                                          Register by using the article search                   John B. King, Jr.,
                                                  Education, after consultation with OMB, may allow
                                                  exceptions for classes of Federal awards or non-        feature at: www.federalregister.gov.                   Secretary of Education.
                                                  Federal entities subject to the requirements of this    Specifically, through the advanced                       For the reasons discussed in the
                                                  part when exceptions are not prohibited by statute.
                                                  However, in the interest of maximum uniformity,
                                                                                                          search feature at this site, you can limit             preamble, the Secretary amends part
                                                  exceptions from the requirements of this part will      your search to documents published by                  3474 of title 2 of the Code of Federal
                                                  be permitted only in unusual circumstances.’’           the Department.                                        Regulations as follows:


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                                7397

                                                  PART 3474—UNIFORM                                       with the requirements of this section,                 has determined that the grantee’s
                                                  ADMINISTRATIVE REQUIREMENTS,                            including, at the grantee’s or                         dissemination plan would likely
                                                  COST PRINCIPLES, AND AUDIT                              subgrantee’s discretion, a license that                achieve meaningful dissemination
                                                  REQUIREMENTS FOR FEDERAL                                limits use to noncommercial purposes.                  equivalent to or greater than the
                                                  AWARDS                                                  The open license also must contain—                    dissemination likely to be achieved
                                                                                                             (i) A symbol or device that readily                 through compliance with paragraph (a)
                                                  ■ 1. The authority citation for part 3474               communicates to users the permissions                  or (b) of this section, or compliance with
                                                  continues to read as follows:                           granted concerning the use of the                      paragraph (a) or (b) of this section
                                                    Authority: 20 U.S.C. 1221e–3 and 3474                 copyrightable work;                                    would impede the grantee’s ability to
                                                  unless otherwise noted.                                    (ii) Machine-readable code for digital              form the required partnerships
                                                                                                          resources;                                             necessary to carry out the purpose of the
                                                  ■   2. Add § 3474.20 to read as follows:
                                                                                                             (iii) Readily accessed legal terms; and             grant); and
                                                  § 3474.20 Open licensing requirement for                   (iv) The statement of attribution and                  (viii) Grantees or subgrantees for
                                                  competitive grant programs.                             disclaimer specified in 34 CFR                         which compliance with these
                                                     For competitive grants awarded in                    75.620(b).                                             requirements would conflict with, or
                                                  competitions announced after February                      (c) A grantee or subgrantee that is                 materially undermine the ability to
                                                  21, 2017:                                               awarded competitive grant funds must                   protect or enforce, other intellectual
                                                     (a) A grantee or subgrantee must                     have a plan to disseminate the openly                  property rights or obligations of the
                                                  openly license to the public the rights                 licensed copyrightable works identified                grantee or subgrantee, in existence or
                                                  set out in paragraph (b)(1) of this section             in paragraph (a) of this section.                      under development, including those
                                                  in any grant deliverable that is created                   (d)(1) The requirements of paragraphs               provided under 15 U.S.C. 1051, et seq.,
                                                  wholly or in part with Department                       (a), (b), and (c) of this section do not               18 U.S.C. 1831–1839, and 35 U.S.C. 200,
                                                  competitive grant funds, and that                       apply to—                                              et seq.
                                                  constitutes a new copyrightable work;                      (i) Grants that provide funding for                    (2) The requirements of paragraphs
                                                  provided, however, that when the                        general operating expenses;                            (a), (b), and (c) of this section do not
                                                  deliverable consists of modifications to                   (ii) Grants that provide support to                 alter any applicable rights in the grant
                                                  pre-existing works, the license shall                   individuals (e.g., scholarships,                       deliverable available under 17 U.S.C.
                                                  extend only to those modifications that                 fellowships);                                          106A, 203 or 1202, 15 U.S.C. 1051, et
                                                  can be separately identified and only to                   (iii) Grant deliverables that are jointly           seq., or State law.
                                                  the extent that open licensing is                       funded by the Department and another                      (e) The license set out in paragraph
                                                  permitted under the terms of any                        Federal agency if the other Federal                    (b)(1) of this section shall not extend to
                                                  licenses or other legal restrictions on the             agency does not require the open                       any copyrightable work incorporated in
                                                  use of pre-existing works.                              licensing of its grant deliverables for the            the grant deliverable that is owned by a
                                                     (b)(1) With respect to copyrightable                 relevant grant program;                                party other than the grantee or
                                                  work identified in paragraph (a) of this                   (iv) Copyrightable works created by                 subgrantee, unless the grantee or
                                                  section, the grantee or subgrantee must                 the grantee or subgrantee that are not                 subgrantee has acquired the right to
                                                  grant to the public a worldwide, non-                   created with Department grant funds;                   provide such a license in that work.
                                                  exclusive, royalty-free, perpetual, and                    (v) Peer-reviewed scholarly
                                                                                                                                                                    (f) Definition. For purposes of this
                                                  irrevocable license to—                                 publications that arise from any
                                                                                                                                                                 section,
                                                     (i) Access, reproduce, publicly                      scientific research funded, either fully
                                                                                                          or partially, from grants awarded by the                  (1) A grant deliverable is a final
                                                  perform, publicly display, and
                                                                                                          Department;                                            version of a work, including any final
                                                  distribute the copyrightable work;
                                                                                                             (vi) Grantees or subgrantees under the              version of program support materials
                                                     (ii) Prepare derivative works and
                                                                                                          Ready To Learn Television Program, as                  necessary to the use of the deliverable,
                                                  reproduce, publicly perform, publicly
                                                                                                          defined in the Elementary and                          developed to carry out the purpose of
                                                  display and distribute those derivative
                                                                                                          Secondary Education Act of 1965, as                    the grant, as specified in the grant
                                                  works; and
                                                     (iii) Otherwise use the copyrightable                amended, Title II, Subpart 3, Sec. 2431,               announcement.
                                                  work, provided that in all such                         20 U.S.C. 6775;                                           (2) A derivative work means a
                                                  instances attribution is given to the                      (vii) A grantee or subgrantee that has              derivative work as defined in the
                                                  copyright holder.                                       received an exception from the                         Copyright Act, 17 U.S.C. 101.
                                                     (2) Grantees and subgrantees may                     Secretary under 2 CFR 3474.5 and 2                     [FR Doc. 2017–00910 Filed 1–18–17; 8:45 am]
                                                  select any open licenses that comply                    CFR 200.102 (e.g., where the Secretary                 BILLING CODE 4000–01–P
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Document Created: 2018-02-01 15:15:25
Document Modified: 2018-02-01 15:15:25
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal regulations.
DatesThese regulations are effective March 20, 2017.
ContactSharon Leu, U.S. Department of Education, 400 Maryland Avenue SW., Room 6W224, Washington, DC 20202. Telephone: (202) 453-5646 or by email: [email protected]
FR Citation82 FR 7376 
RIN Number1894-AA07
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