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Open Policy Rationale for U.S. Federal Government

What is Open Policy?

Open Policy is the simple idea that publicly funded resources are openly licensed resources. The public should have access to what it paid for, and should not be required to pay twice (or more) to access and use federally funded education resources, research materials, or data. Today the public pays for the development of these resources first through their tax dollars, and then again to access the same federally funded materials such as textbooks, scientific journal articles, or data sets.

Open Policy is made possible through the funder’s use of open licenses, whereby the acceptance of public funds requires grantees to share content developed with those funds broadly under an open license, such as the Creative Commons Attribution (CC BY) license for content and the CC0 Public Domain dedication for data.

Why is open licensing important?

While U.S. Federal Agencies typically retain a nonexclusive and irrevocable license to reproduce, publish, or otherwise use their grant-funded project materials for government purposes, Departments rarely exercise that license to provide the public free and legal access to those publicly funded resources. The adoption of Creative Commons licensing clarifies to the public how they may access, use, and adapt publicly funded resources.

There are multiple benefits of requiring open licenses on publicly funded resources:

• Government increases the impact, reach and scalability of its grants,
• Government is more efficient and a better steward of public funds,
• Public has access to the education, research and data resources it funded,
• Innovative and entrepreneurial uses of openly licensed materials are enabled,
• Resources are available for reuse and value-add by anyone, including individual citizens, educators, scientists, public sector employees, entrepreneurs, and commercial businesses.

Creative Commons licenses are public copyright licenses that grant permission to the public to reproduce, distribute, perform, display or adapt the licensed materials for any purpose, and typically contain a minimal set of conditions, such as the requirement that a user provide attribution to the author. Creative Commons licenses are built on top of and encourage respect for copyright and copyright holders. Open policies leveraging open licenses allow creators to retain copyright, the government to retain its nonexclusive, irrevocable license, and provide the public with free, legal access to publicly funded resources.

Creative Commons licenses are the global standard for open content licensing. There are over 880 million CC-licensed objects available on the web. CC licenses have been adopted globally by governments and public sector bodies, scientific publishers, and cultural heritage institutions such as national museums and libraries. CC licenses are the legal standard for collaboration on the web, used by businesses like Microsoft to communities like Wikipedia to philanthropy like the Ford Foundation.

Open licensing precedents at U.S. Federal level

There are several existing initiatives at the U.S. Federal level that have adopted open licensing for publicly funded materials. These include:

• Department of Labor:
  • Trade Adjustment Assistance College and Career Training Grant Program
  • Career Pathways Innovation Fund Grant Program
  • H-1B Ready to Work Partnership grant program

• Department of Education:
  • First in the World Program-Development Grants

• Project Open Data
  • usable examples of open licenses for potential use by agencies

• Data.gov
  • http://catalog.data.gov/dataset/climate-data-online-cdo

Related initiatives

The fundamental principle that the public should have access to materials it funds has already been validated and embraced through initiatives such as the National Institute of Health’s Public Access Policy, where the final peer reviewed journal manuscripts resulting from NIH funding (~$30 billion annually) must be deposited in a publicly accessible digital archive within 12 months of publication so that anyone can access them. Similarly, the White House issued a Directive supporting public access to publicly-funded research and data where Federal agencies with more than $100M in R&D expenditures must develop plans to make the published results of federally funded research freely available to the public within one year of publication.

Recommended U.S. Federal Grant Open Policy Text

Intellectual Property Requirements

To ensure that the Federal investment of these funds has as broad an impact as possible and to encourage innovation in the development of new learning materials, as a condition of the receipt of a [insert grant name] grant, the grantee will be required to license to the public all work (except for computer software source code, discussed below) created with the support of the grant under a Creative Commons Attribution license, version 4.0 or later (CC BY). Work that must be licensed under CC BY includes new content created using grant funds, modifications made to pre-existing, grantee-owned content using grant funds, and new works and modifications made to pre-existing works commissioned from third parties using grant funds.

This license allows subsequent users to copy, distribute, transmit, and adapt the copyrighted work and requires such users to attribute the work in the manner specified by the grantee. Notice of the license shall be affixed to the work. For general information on CC BY, please visit http://creativecommons.org/licenses/by/4.0. Instructions for marking your work with CC BY can be found at https://wiki.creativecommons.org/Marking_your_work_with_a_CC_license. Questions about CC BY as it applies to specific [insert grant name] grant applications should be submitted to [insert US Agency] to the [insert “program officer” title] specified in Section X.

Pre-existing copyrighted materials licensed to the grantee from third parties, including modifications of such materials, remains subject to the intellectual property rights the grantee receives under the terms of the particular license. In addition, works created by the grantee without grant funds do not fall under the CC BY license requirement.

The purpose of the CC BY licensing requirement is to ensure that materials developed or acquired with funds provided by these grants result in work that can be freely reused and improved by others. When purchasing or licensing consumable or reusable materials, grantees are expected to respect all applicable Federal laws and regulations, including those pertaining to the copyright and accessibility provisions of the Federal Rehabilitation Act.

Further, the [insert US Agency] requires that all computer software source code developed or created with [insert grant name] funds will be released under an intellectual property license that allows others to use and build upon them. Specifically, the grantee will release all new source code developed or created with [insert grant name] grant funds under an open license acceptable to either the Free Software Foundation and/or the Open Source Initiative.

Separate from the CC BY license to the public, the Federal Government reserves a paid-up, nonexclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use for Federal purposes: the copyright in all products developed under the grant, including a purchases ownership under an award (including, but not limited to, curricula, training models, technical assistance products, and any related materials). Such uses include, but are not limited to, the right to modify and distribute such products worldwide by any means, electronically or otherwise. The grantee may not use Federal funds to pay any royalty or license fee for use of a copyrighted work, or the cost of acquiring by purchase a copyright in a work, where the [insert US Agency] has a license or rights of free use in such work. If revenues are generated through selling products developed with grant funds, including intellectual property, these revenues are program income. Program income is added to the grant and must be expended for allowable grant activities.

If applicable, the following statement needs to appear on all products developed in whole or in part with grant funds, “This [insert grant name] product was funded by a grant awarded by the [insert US Agency]. The product was created by the grantee and does not necessarily reflect the official position of the [insert US Agency]. The [insert US Agency] makes no guarantees, warranties, or assurances of any kind, express or implied, with respect to such information, including any information on linked sites and including, but not limited to, accuracy of the information or its completeness, timeliness, usefulness, adequacy, continued availability, or ownership.”

Optional Text

[insert grant name] represents an investment in the next generation of open educational resources (OER) by requiring that all new intellectual property, including all digital content be openly licensed for free use, adaptation, and improvement by others. OER are teaching, learning, and research materials in any medium that reside in the public domain or have been released under an open license that permits their free use and re-purposing by others.

Grantees are encouraged to search existing [insert US Agency] resources and OER repositories for openly licensed learning objects and, where appropriate, reuse these learning objects instead of duplicating existing objects as components of their proposed programs. If existing OER are reused as part of the grant funded project, the grantee shall comply with the terms of the applicable open license, including proper attribution. All other CC BY license requirements apply as noted above. In cases where no existing OER is appropriate to the specific needs of proposed programs, applicants are encouraged to consider the most efficient and practical means of acquiring content, for example licensing or purchasing content.