Open Licensing Requirement for Direct Grant Programs

"On behalf of the Association of American Universities (AAU), the Association of Public Land-grant Universities (APLU), the Association of University Technology Managers (AUTM), and the Council on Governmental Relations (COGR), we write to comment on changes recently proposed by the Department of Education that would require recipients of grant funding from the Department to openly license all copyrightable intellectual property to the public (RIN 1894-AA07; Docket ID ED-2015-OS-0105). We appreciate the opportunity to comment, in advance, on these proposed changes to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards ... We support the salutary objectives of the Notice of Proposed Rulemaking (NPRM) – namely, to stimulate wide dissemination to the public of educational materials created under Department grants and to broaden the impact of the Department’s and thus the public’s investments. Indeed, our member institutions already routinely use open licenses to make available educational and other materials that they create. However, we are concerned that the change proposed in the NPRM to amend the Department’s regulations to require recipients of grant funds to openly license materials in all cases goes too far by adopting a 'one size fits all' approach to disseminating copyrightable works. This approach would apply open licensing, not always appropriately or effectively, to many different kinds of materials, including curricula, manuals, videos, art, photography, software, and webpages, to provide just a few examples. Consistent with current Department policy, universities strategically choose from a menu of distribution models, including a range of open licensing models, and non-exclusive or exclusive copyright licensing. Many universities also maintain internal repositories of copyrightable works and also deposit datasets to widely used repositories such as the one maintained by the Interuniversity Consortium for Social and Political Research at the University of Michigan. Open licensing is not a suitable, much less optimal, strategy in all cases, especially when the technologies in question are disruptive or require curation and quality control for successful, scalable implementation ..."