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FY 2022 OTP Competition FAQ’sFAQs 1 MS Word (30K)FAQs 2 MS Word (17K)

## Introduction:

The purpose of this document is to provide  answers to the most frequent questions we have received from applicants thus  far. Our intent is to update this document to continue to clarify questions we  may receive from Fiscal Year (FY) 2020 applicants and grantees. This guidance  is not intended to create new requirements but to clarify issues that arise  from the implementation of the rule published on January 17, 2017. The text can  be found at 2 C.F.R. §3474.20 and online, click  here.

If you are responding to a notice inviting  application (NIA) for an open grant competition and have any questions about  this guidance or about an aspect of the open licensing requirement that is not  addressed in this guidance, please submit your questions to the contact listed  in the NIA with a copy to tech@ed.gov. Please also feel free to provide comments or other input on  this guidance to tech@ed.gov.

**UNDERSTANDING THE OPEN LICENSING REQUIREMENT AKA "OPEN  RULE"**

 

- What is the open licensing requirement for competitive grant programs, aka "open rule" ?
- Does the open rule apply to all copyrightable works ?
- How does the open rule apply to previously licensed materials ?
- How does the open rule apply to modifications on existing materials ?
- How does the open rule apply when a work is built using a copyrighted or patented product ?
- What are the exceptions to the open rule ?
- What are examples of final grant deliverables that are covered by the open rule ?
- What is the requirement to disseminate final grant deliverables and program support materials ?
- What if the grant program does not require copyrightable materials to be created?  What if my project proposal does not involve creation of copyrightable materials ?

**UNDERSTANDING OPEN LICENSING**

- What is a license to a  work, and what is an open license ?
- How do open licenses relate to open source software ?
- What are examples of  open licenses that satisfy the requirements of the open rule ?
- Does an open license mean that we must allow the  public to access the final grant deliverables at no cost ?

**UNDERSTANDING THE OPEN LICENSING REQUIREMENT AKA "OPEN RULE"**

**1.  What is the open licensing requirement for competitive grant programs, aka “open rule”?**Beginning  with FY 2018 grant competitions, in accordance with the “open rule” published  in early 2017, the Department is generally requiring that for competitive  grants, grantees and subgrantees must openly license grant deliverables created  wholly or in part with Department grant funds.   This requirement will apply to *new* copyrightable works and any *new  modifications* to pre-existing works that are separately identifiable and developed  during the grant implementation.  

Under this  open rule, all new NIAs for discretionary grant programs will clearly indicate  whether that program is subject to the requirements of the open rule or whether  it has been granted an exception.  The  unusual circumstances needed to justify exceptions for individual grantees and  grant deliverables are also described in the open rule (more guidance on this  may be developed in the future).  

**2.  Does the open rule apply  to all copyrightable works?**Unless an exception applies to the grant program, the open rule applies to all final grant deliverables created wholly or in part with Department funds, including any program support materials. 

Final grant deliverables are final versions of a work developed to carry out the purposes of the grant.  Each year, the Department funds a variety of grant programs that support a diverse array of grant-funded works.  These have included instructional materials, personalized learning delivery systems, assessment systems, language tools, and teacher professional development training modules, just to name a few.

Program support materials are materials that are necessary to understand, learn from, use, and replicate the final grant deliverables.  For example, some support materials may document best practices in implementation of certain tools for specific target populations.  Since the best practices would be considered a key element to the appropriate use of final grant deliverables, they would be covered by the requirement that they be openly licensed and made available to the public.

Materials, such as staff training guides, 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 openly licensed.  Other copyrightable works, such as email correspondence, administrative documentation, or deliberative work products that are produced through a grant project, will generally not be considered program support materials necessary to the use of the deliverables and therefore would not need to be openly licensed.  The open rule only applies to copyrightable works and does not apply to the creation of “trade secrets” or “patentable inventions” with Department funds.   

**3.  How does the open rule apply to previously licensed materials?**The open rule does not apply to any pre-existing intellectual property.  This includes existing copyrightable works or any copyrightable works purchased by grantees or created by grantees without any funds from the Department.  

**4.  How does the open rule apply to modifications on existing materials?**The rule applies only to modifications that are separately identifiable from the existing materials and does not apply to existing materials themselves. 

**5.  How does the open rule apply when a work is built using a copyrighted or patented product?**The open rule does not apply to the tools used to create a final grant deliverable, only to the deliverable itself.  

**6.  What are the exceptions to the open rule?**,There  are some specific exceptions to the open rule:- Program Exceptions
Grant programs that provide funding  for general operating expenses
Grant programs that provide support  to individuals (e.g., scholarships, fellowships)
Grants awarded through the Ready to  Learn Television Program, which already has a well-established system of  disseminating the products of the grants 

- Materials/Resources
Peer-reviewed scholarly publications  that arise from any scientific research funded, either fully or partially, from  grants awarded by the Department
Final 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 final grant  deliverables for the relevant grant program 
Works created by the grantee or  subgrantee not using Department grant funds, including matching funds, unless  an exception is made

- Individual Exceptions
The Secretary has determined that  unusual circumstances exist that warrant the grantee (or subgrantee) to receive  an exception
The Department has determined that compliance  would conflict with other intellectual property rights of the grantees (or  subgrantees)

If one of these program exceptions applies to a grant program, it will be clearly stated in the NIA.  Exceptions for specific deliverables or for individual grantees can be considered after a grant is awarded.  These case-by-case decisions will be made during the period of grant performance, as deliverables are developed and there is more information about the deliverable, such as the nature of the content, funding sources, and specific areas of conflict.

**7.  What are examples of final grant deliverables that are covered by the open rule?**Some grantees have already begun to openly license the resources they have created.  For example: - Massachusetts Institute of  Technology (MIT) is creating scalable, differentiated instruction using  technology-enabled competency-based dynamic scaffolding through the  Department’s First in the World Grant Program.   The modular curriculum mapping technology for creating competency-based  mappings to content and student skills and outcomes, student and instructor  applications, and results of implementation studies are available to the public  at:  http://fbw.mit.edu/technology . 
- Grants by the Department’s Office of  Special Education Programs (OSEP) aim to create resources that support  children, youth, and adults with disabilities.   Through these grants, Benetech, a nonprofit corporation operates the  DIAGRAM+ Center to provide image and math accessibility for students with print  disabilities, such as blindness and dyslexia, autism spectrum disorders,  hearing impairments, intellectual disabilities, and other disabilities, as well  as students with any disabilities who are also English language learners.  Benetech has voluntarily provided these  resources under a Creative Commons license so that all schools, community  organizations, technology developers, and students may freely use, adapt, and  widely redistribute the assistive technologies, resources, and training  materials.  For more information, visit:  http://diagramcenter.org/   
- The National Language Resource  Centers (LRC) program funds institutions of higher education to research and  develop resources for Less Commonly Taught Languages (LCTL).  Though there was no requirement for the  grantees to openly license their resources, the University of Texas at Austin  elected to openly license 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  found at  https://www.coerll.utexas.edu/​coerll/ .

**8.  What is the requirement to disseminate final grant deliverables and program support materials?**Under the  open rule, grantees will be required to develop a plan to disseminate the final  grant deliverables and any program support materials.  The Department does not prescribe the format  of the dissemination plan in order to allow grantees flexibility to develop a  plan that is appropriate for the particular types of deliverables and support  materials and for the individual timeline for implementation of grant  activities.  Dissemination plans can be  developed throughout the course of the grant period in consultation with the Department  project officer, as appropriate to the workplan of the grant and when  deliverables will be finalized.  We  encourage grantees to discuss the development of their dissemination plans as  early as possible with their project officers.  
**9.  What if the grant program does not require copyrightable materials to be created?  What if my project proposal does not involve creation of copyrightable materials?**Each year,  the Department funds a variety of grant programs.  Although many of these result in  copyrightable works that would be considered grant deliverables, many grantees  do not produce grant materials.  In cases  where grant deliverables are not required by the grant program or if they are  not proposed to be produced by grantees in the execution of their grant projects,  the open rule would not apply.  If  consultation with program officers shows that a grantee will not be developing  a deliverable covered by the open rule, the grantee would not need to take  further action.  ****

**UNDERSTANDING OPEN LICENSING**

**10.  What is a license to a work, and what is an open license?**Generally,  a license is a legal document that specifies what can and cannot be done with a  copyrightable work (such as audio, text, an image, or multimedia).  It grants the user of the copyrightable work  permissions and states any restrictions on use.  

Broadly  speaking, an open license grants permission to access, re-use, and redistribute  a work with few or no restrictions.  Some  examples of the conditions that must be met in order for a license to be open  are available in the Open Knowledge  Definition 2.1, but others may apply.

**11. How do open licenses relate to open source software?**An open  source software license is a type of open license specific to computer software  and other products that allows source code, blueprints, or design to be used,  modified, and/or shared under defined terms and conditions.  Generally, to be considered an open source  license, the license on the software or other product must be approved by the  Open Software Initiative based on its Open Source Definition that allows free  use, modification, and sharing.

Examples  of open source licenses that can be used to meet the requirements of the open  rule include GNU General Public License (GNU-GPL), Apache, Mozilla Public  License (MPL), MIT, or those that otherwise follow principles established by  the Open Source Initiative. Grantees may  use any open source license that meets the requirements listed immediately  below.  

**12.What are examples of  open licenses that satisfy the requirements of the open rule?**In order  to satisfy the requirements of the open rule, the open license must be  worldwide, non-exclusive, royalty-free, perpetual, and irrevocable.  In addition, the open license must permit the  public to: 
- Access, reproduce, publicly perform,  publicly display, and distribute the copyrightable work;
- Prepare derivative works and reproduce,  publicly perform, publicly display, and distribute those derivative works; and 
- Otherwise use the copyrightable  work, provided that in all such instances attribution is given to the copyright  holder.

The open  license must also contain:
- 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).

Depending  on the final grant deliverables, licenses that meet these requirements could  include, but may not be limited to, the following:

**Intended Use**

**Open License Examples**

Free    and Open Source Software

GNU General Public License    (GNU-GPL), Apache, Mozilla Public License (MPL), MIT

Open    Data

ODbL,    CC0

Open    Access

CC BY

Open    Content

CC BY

During the  period of the grant, if grantees have additional questions about selecting  licenses, they should contact their project officers directly.

**13. Does an open license mean that we must allow the  public to access the final grant deliverables at no cost?**Yes, the  open rule requires the selection of any license that will allow the public to  use the final grant deliverables as described above in a *royalty-free* manner, i.e., at no cost.  In addition, the license to the final grant  deliverable is required to be *perpetual* and *irrevocable*

Open  licenses that are royalty-free, perpetual, and irrevocable allow the public to  continuously access the licensed final version of the final grant deliverable  for no cost.  However, grantees may elect  to charge for access to services or derivative versions of the final grant  deliverable at any time during or after the grant period.  

**DEFINITIONS**

Copyrightable  work – Copyrightable works are those original works of authorship that are  fixed in tangible form of expression, as defined in the Copyright Act, 17 U.S.C.  § 101. 

Derivative work – Means a *derivative work* as defined in  the Copyright Act, 17 U.S.C. § 101.

Grant  deliverable – 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  C.F.R. § 3474.20(f)).

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  Last Modified: 07/01/2022