On November 3, 2015, the Department of Education ("DoEd") issued proposed regulations that would require grantees to give the public unrestricted access to all copyrightable materials or modifications to existing content created in whole or in part with DoEd grant funds ("Materials"). Under this new "open licensing requirement," grantees must provide to the public a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable license to the Materials. The regulations do require that users of the Materials name the grantee as the author/copyright holder.
The purpose behind the open licensing requirement is to increase the impact of DoEd grant funds by (1) eliminating barriers to public access to Materials, especially for students and teachers, and (2) encouraging innovation based on the Materials. DoEd will retain its royalty-free, non-exclusive, and irrevocable right to use, reproduce, publish, and authorize others to use Materials for government purposes.
An obvious result of the open licensing requirement is that it will limit grantees' ability to profit from the sale of Materials to the general public. The Secretary of DoEd can authorize exceptions to the open licensing requirement. In addition, the proposed requirement is inapplicable to grants that fund general operating expenses or support individuals (e.g., scholarships, fellowships). Also exempt from the open licensing requirement are grant-related, peer-reviewed research publications already covered by the Institute of Education Sciences' existing public access policy.
Public comments on the proposed regulations are due by December 3. The full notice is available here: https://www.federalregister.gov/articles/2015/11/03/2015-27930/open-licensing-requirement-for-direct-grant-programs.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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