Grantors2

Creative Commons

Model Intellectual Property Licensing Policy for Foundations

The two documents attached to this cover sheet are:

1. A draft of a basic policy statement that a foundation might adopt, expressing the foundation’s commitment to having its own intellectual property and that produced by grantees with grant funds be open for use and re-use; and 2. A few examples of changes that individual foundations might wish to make if they were to adopt such a policy.

The basic policy statement appended here is intended to be short, clear, and non-technical – what Creative Commons calls “the human-readable form” in referring to its licenses. Our licenses also have a detailed ‘legal code’ version, and we would create one for this policy as well – but it would be long, technical and unintuitive, and we’ll only do it if there is demand. We believe that foundations will prefer this stand-alone version, which non-lawyers should have no trouble understanding; it can be posted on the Foundation website and incorporated in grant awards by reference (e.g., ‘This grant is subject to the Foundation’s grant-related policies, such as its Intellectual Licensing Policy (see [website link])’), or included in full in the award letter. Creative Commons is not a law firm, and we don’t offer legal advice; in particular, we do not guarantee that this policy will be legally binding on grantees. But for many foundations, that won’t matter; grantees, especially those hoping for future grants, generally try to fulfill grant requirements without seeking to test them in court.

The simplicity of the basic policy statement was achieved by ruthlessly ignoring the differences among foundations in terms of their funding objectives, styles, and philosophies. We believe it should be reasonably easy to adapt the basic draft to accommodate these differences, and the second document appended here is intended simply to give an idea of the kinds of variations that might suit individual foundations. Item 6 in that second document includes text for systematizing the procedures for making exceptions to the policy. We don’t think including such procedures in the policy statement is a great idea, because it invites time-consuming requests for unneeded exceptions. On the other hand, the policy should always be applied in light of the foundation’s purpose in making a grant; if, for example, a part of the purpose is to provide the grantee with a source of income, and that income can only be realized by selling copies the grant-funded work rather than by providing ancillary services, it would not be rational to insist on the work’s being published under CC BY. That’s why the actual Policy Statement begins with “Generally speaking….” – but we don’t believe any special text, or excuse, is needed, for a foundation to act in the way most reasonable under the circumstances.

All of us at Creative Commons shall very much appreciate your comments.

Iris Brest Special Counselor, Policy Creative Commons

P.S. The easiest way to change the Policy to refer to your own foundation is first, search for “X” (case sensitive, whole word) and replace with the foundation’s name, then search for “Foundation” (case sensitive) and substitute “Fund” or “Trust” or other applicable term.

X Foundation DRAFT Intellectual Property Licensing Policy

As part of its mission, X Foundation aspires to use its assets wisely to achieve the greatest possible impact. We believe that making the work we support, and our own work, openly available and free to the public will contribute to this mission. This Intellectual Property Licensing Policy is intended to assure that the intellectual fruits of the work of our Grantees and of our staff are easy to find and available for open sharing – including access, adoption, revision, re-purposing and adaptation – in order to maximize their impact and hence the public benefit. The Policy provisions applicable to Grantees are set out in Part I, while works commissioned by X or created by X in house are covered in Part II.

Part I. Grant-funded works

Applicability

“Grant-funded works” are intellectual property (IP) created in the course of carrying out the provisions of any grant from X, except those grants for general operating support of the Grantee (or one of the Grantee’s self-defined units, such as a particular school of a university), for capital projects, or for endowments that are not expected to fund the creation of intellectual property. For the purposes of this Policy, works created in the course of a project funded by others in addition to X Foundation count as grant-funded works.

Policy

Generally speaking, it is the Foundation’s policy that:

• Grantees should publish grant-funded works under open terms. More precisely, this means that: • All published grant-funded copyrightable works – such as research reports, videos, and works of art – should normally be licensed under the most recent version of the Creative Commons Attribution license (CC BY). This license permits others to use works made with grant funding, not only by viewing them and making copies, but also by incorporating all or parts of them in other works, changing them, and even publishing and selling them – as long as the new user attributes the work as the Grantee directs. o Note: If works created with grant funding include parts or all of pre-existing works that do not belong to the Grantee, those included sections must be clearly marked to indicate whether they are used under another license (and if so, which), by permission of the copyright owner, by right of fair use, or by virtue of public domain status. • Software created with grant funds should be published under whichever open source license the Grantee has selected and specified. A list of approved open source licenses is available from the Open Source Initiative. • Each Grantee gives X permission to make copyrightable property resulting from the grant available to the public if a Grantee does not comply with the Policy. • [Exception: Some universities and other institutions maintain an open access policy for works of their faculty or other staff. If that policy covers works made under the grant, compliance with the institutional policy will satisfy the Foundation’s requirements. • Other exceptions will be made to this Policy only if they will either increase the likelihood that the grant purpose will be achieved or enhance the project’s impact.] • Although this Policy requires that grant-funded IP be openly licensed, it does not entail a change in who has title – that is, who owns the copyright. Copyrights are normally owned by the Grantee, but not always; here are some examples: • When the Grantee is a university, it may have policies providing that copyrightable works created by faculty members (or certain staff or students) are owned by their creators. • When a Grantee acquires copyrightable work from a consultant, the consultant may own the copyright, subject to the provisions of the consulting agreement. If a copyright or patent subject to this Policy is not owned by the Grantee, it is the Grantee’s responsibility to secure the owner’s agreement to the provisions of this Policy (e.g., to publication under CC BY). For instance, if the work of a consultant will be incorporated in the grant-funded work, the contract with the consultant must give the Grantee sufficient rights to comply with this Policy, by assigning copyright to the Grantee, by requiring the consultant to attach a CC BY license to the work, or otherwise. Again, if research papers are expected to be produced by faculty, staff, and/or students of a university Grantee, the Grantee may, depending on its own IP and open access policies, need to assure the consent of the creators of the works to having their contributions licensed under the terms required by this policy. • Data from surveys or scientific research must be published as soon as feasible with a public domain dedication such as CC0. Of course, factors such as privacy, confidentiality and applicable legal requirements must be taken into account; for example, care must ordinarily be taken to remove personally identifiable information before publication. Data should be easily findable; while it may be posted on an institutional or personal website, it should also be deposited in a free and open repository or referatory appropriate to the discipline. Data should be formatted so as to be technically interoperable with other data to the extent possible. If the data require specific tools for access, use and analysis, those tools should also be made available under a free and open license as noted in the software section above. “Implementing an Open Data Policy: A Primer for Research Funders” is addressed to funders, but Grantees will find many parts of it, including the section on what constitutes an acceptable data sharing plan, helpful in determining how their data are to be shared. • Making works findable: Content should be easily locatable on the Web, preferably without registration or paywalls. This requires, at a minimum, that metadata be entered for all CC-licensed works.

Part II. Foundation in-house and commissioned works:

• X Foundation owns the works created by its employees in the course of their employment. Ownership of works commissioned by X is normally required to be assigned to the Foundation by the independent contractor. Grantees may wish to use a similar provision if they commission works as part of a grant. • Except where concerns such as privacy or confidentiality militate against it, Foundation works of other than purely internal utility will be published under a CC BY license on the Foundation’s website [www.xfn.org] and, where appropriate, in other locations and media, omitting any incorporated third party materials the Foundation does not have permission to use in this way.

Exceptions and Variants

Creative Commons suggests the foregoing statement of policy as the simplest and most open version. We know, however, that each Foundation has its particular mission, values and ethos, which may require or suggest departures from the standard form. Some of these are indicated below; portions in square brackets are possible variants on the variants. CC is ready to help customize the Policy to incorporate the exceptions and variants below, as well as others that may be proposed by individual foundations.

1. Some foundations may wish to add a sentence at the end of the Note to the paragraph beginning “All published grant-funded copyrightable works … should normally be licensed under … CC BY”, for clarification. For example, this sentence might be added: “Pre-existing work that Grantee is not entitled to publish in a CC-BY licensed work may not be included in the grant-funded work; if permission would be needed from the rights-holder, Grantee must either obtain permission or substitute material that it is authorized to publish under the CC BY license.”

2. Foundations may wish to add a second note after the one referred to above to suggest that a copy of grant-funded research in the social sciences also be posted to IssueLab. For example: Note: X suggests that a copy of any grant-funded research in the social sciences, with the CC BY license attached, be provided for posting to IssueLab, Foundation Center's open access, open source library for the social sector (http://www.issuelab.org/home).

3. The reason for the first of the optional bullets on page 2 of the policy is that some foundations may wish to recognize the step toward openness taken by certain universities or schools in adopting an open access policy by accepting compliance with the grantee’s policy in satisfaction of the Foundation’s own policy, even though university policies often provide for access only, for non-commercial uses only, and not for the re-purposing, re-mixing, and other uses permitted under CC BY. (See http://cyber.law.harvard.edu/hoap/Good_practices_for_university_open-access_policies for a discussion of open access policies.) The bullet text would excuse works made accessible under a university’s open access policy from the CC licensing requirement.

4. Some Foundations may wish to exclude certain types of works; for example, they may wish to amend the general rule by providing “except that [nonprofit] creators of grant-funded works of [graphic, musical or videographic] art will generally be permitted to exploit them [freely; or, for the Grantee’s charitable purposes].” In this case, a similar exception (plus permission for the contractor to retain ownership of the works) may be applicable to works commissioned by the Foundation as well.

5. As written, the policy has no explicit provision for grant-funded patents. For most foundations, this will not be an issue since patents are unlikely to result from their grants. If the foundation does wish to cover patents, they should be mentioned in the section on ownership. Also, this paragraph may be inserted after, and at the same level as, the bullet reading “Each Grantee gives X permission to make copyrightable property resulting from the grant available to the public if a Grantee does not comply with the Policy.”

• Patentable inventions will be governed by the Grantee’s internal policies, but X will have ‘march-in rights’ – that is, if the Grantee does not make practical applications of the technology available reasonably expeditiously, X Foundation may do so itself. It is the Foundation’s hope that in transferring technology, Grantees will license or assign inventions in ways that consider the needy, especially in providing affordable therapeutics, diagnostics and agricultural technologies.

6. The Foundation is always free to make exceptions to the policy, and should do so if that would further the grant purpose. Incorporating statements about exceptions in a published policy, such as the second optional bullet on page 2, may result in more frequent requests for exceptions, reducing the amount openly-licensed grant-funded material and creating additional work for program officers without furthering the foundation’s aims. If, however, the Foundation wishes the policy to include explicit provisions for Grantee requests for exceptions, it may use the optional bullet or the text below:

“[Other] Exceptions: In general, the license requirements of this Policy are intended to assure that knowledge acquired and resources produced as a result of a grant are shared as widely as possible. Recognizing that individual grants have different objectives and that each Grantee has its own strategic plans, exceptions will sometimes be permitted where they better serve the common aims of the Grantee and the Foundation.”

If the Foundation does include an express provision about exceptions, it may also wish to include procedures for requesting exceptions and criteria for granting them – although this is not necessary. Here is some sample text:

Procedures: “To request an exception to the Policy [before or after the grant agreement is complete], the Grantee should submit the following to the program officer: o A description of the work for which an exception is requested; o The [compelling] reason for the request; o The alternate provisions the Grantee proposes for distribution of the work or other sharing of knowledge acquired through the grant.” Criteria: “The Foundation will consider all requests, but has a strong presumption against making exceptions to the Policy. Considerations include: o Status of Grantee: For-profit or individual Grantees will [normally] not be permitted to retain rights that convey commercial advantage, such as licensing under CC BY NC and/or ND [unless the reasons are unusually compelling]. o Policy of proposed publisher: short delays (up to 6 months) in open publication of research works will sometimes be allowed where the policy of the preferred publisher requires it, conditional on immediate publication of the postprint version in an easily located repository. [The request will not be granted unless it demonstrates that other equally satisfactory publishers with more open policies are not reasonably available.] Note: this in effect substitutes simple access to read the work for the fully open characteristics of CC BY. Some publishers will license the works under CC BY if page charges are paid; this will probably be possible only if the grant covers the cost, so the Foundation may wish to allow grantees to make these costs part of the grant budget.] o Alternative licenses: requests to use a different license from the one specified by the Policy will usually be granted if the alternative is consistent with the underlying purpose of the Foundation’s Policy; that is, to serve the public interest by making knowledge funded by the Foundation as widely accessible and usable as can be.”

7. Some grantors may prefer to permit the use of licenses other than CC BY – for example, the Attribution and Share Alike license, CC BY-SA. In this case, alternative language should be used, such as “the Creative Commons (CC) license specified in the grant agreement” or “the Creative Commons (CC) license agreed upon between X and the Grantee.” The description that follows the requirement will also need to be changed – generalized to cover more than CC BY. We note that this tends to generate more work for program officers and to result in incompatible licenses – that is, in works that are licensed in a way that makes it impossible to combine them with other CC licensed works without special permission from the copyright owner. Again, as in the case of item 6‎5, the foundation may wish to keep this provision as an internal guideline, rather than part of a public policy, in order to minimize requests for exceptions,

8. In connection with the exclusion from the Policy of grants for general operating support, the Foundation may wish to add that “Recipients of GOS or unrestricted program support are encouraged to adopt similar policies” [or, “GOS Grantees will be informed of the Foundation’s policy strongly favoring open licensing, {and requested to consider adopting similar policies};” or, “In making GOS and unrestricted program support grants, X takes into account the IP policies of potential Grantees, giving weight to applications from entities that require or encourage open publication of their IP.”] Also, if X makes PRIs or impact investments, it may wish to add “nor does the Policy apply to any of X Foundation’s financial investments, including Program Related Investments and impact investments”.

9. In connection with making works findable, the Foundation may wish to add details, such as requiring that the works be listed on a labeled page of the Grantee’s website or the Foundation’s website. Foundations may also wish to direct that such works credit the Foundation (e.g., ‘funding for this work was provided by X Foundation’) unless the Foundation directs that this not be done.

10. Some foundations may wish to publish (that is, post to their website) some or all funded grant proposals, edited by the Grantee to remove material it considers confidential. In that case, language signaling this should be included in the policy statement. For example: “Grantee grants X permission to post the funded Proposal on X’s website, in whole or part, provided that Grantee shall first be given the opportunity to redact any material it reasonably considers confidential, private or proprietary.”

11. A foundation may wish to add following sentence to the end of the second bullet in Part II of the Policy:

• Foundation works concerning social sciences, with the CC BY license attached, are also posted to IssueLab, Foundation Center's open access, open source library for the social sector (http://www.issuelab.org/home).

12. A foundation that wishes to signal its dedication to transparency in its own operations might add the following provision to Part II of the Policy:

• X Foundation has joined in the GlassPockets Reporting Commitment, a project of the Foundation Center, under which we make grant information available to other foundations and the public at least quarterly, in a machine-readable, open format and coded to a uniform geographic standard. The information can be accessed here.

13. If the foundation feels that a glossary is needed, this text can be added after the introductory paragraph:

The following abbreviations are used in the Policy: CC-BY: the free Attribution License published by the non-profit organization Creative Commons, permitting others to use, distribute, repurpose and change copyrightable works as long as they give due attribution as specified by the licensor. It can be selected and attached to a work on the internet through this link. CC0: a tool made available by Creative Commons for freeing copyrightable work from all copyright restrictions around the world, especially useful for data. It can be selected and attached to a work on the internet through this link. IP: Intellectual Property – primarily copyrightable works, data, and patents, but including works, such as uncopyrightable databases, that are protected under the laws of other countries, and excluding trade- and service-marks.