Ethics, Compliance and Audit Services
Identify and Safeguard Controlled Information
The University maintains an open fundamental research environment (FRE) by observing the freedom to publish and disseminate research results and practicing nondiscrimination and open access to University classrooms, libraries, laboratories, and specialized research facilities, without regard to citizenship. In order to maintain the FRE, the University may not accept such restrictions in a research award, and in addition, no University employee can consent (in a written or verbal side agreement or arrangement) or otherwise engage in behavior that restricts publication or the participation of foreign nationals.
Even in the conduct of fundamental research, an export control license may be required if the project involves: an NDA covering the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to ITAR-controlled equipment. Identifying and safeguarding controlled technology are critical elements of export control compliance.
If you need assistance contact your location Export Control Officer.
Generally, technology or technical data that is publicly available does not require a license to export. Such technology may become publicly available through three ways:
- Information that arises through fundamental research where the information is ordinarily published is considered to be publicly available. 22 C.F.R. § 120.11(8); 15 C.F.R. § 734.8.
- Information contained in a patent or published patent application. 22 C.F.R. § 120.11(5); 15 C.F.R. § 734.10.
- Information that is published and generally accessible or available to the public 22 C.F.R. § 120.11; 15 C.F.R. § 734.7.
Information is "published" when it becomes generally accessible to the interested public in any form, including: (1) publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution; (2) information readily available at libraries open to the public or at university libraries; (3) patents and published patent applications available at any patent office; or (4) information released at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).
Note 1: Prepublication review by a sponsor of university research solely to ensure that the publication does not compromise patent rights or inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research, so long as the review causes no more than a temporary delay in publication of the research results. However, if the sponsor will consider as part of its prepublication review whether it wants to withhold publication of the research results, then the research would no longer qualify as "fundamental". As used in the export regulations, it is the actual and intended openness of research results that primarily determines whether the research counts as "fundamental" and not subject to the export regulations. University-based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example, of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project.
Note 2: A conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either 'first come' or involves selection based on relevant scientific or technical competence.
Note 3: Some information, even if publicly available, may still be restricted depending on with whom you are sharing the information or for what purpose. For example, providing export-controlled information to a foreign military may be a defense service, which would require an export control license. In addition, certain end uses, such as research on biological weapons, or end users, such as those named on restricted lists, may also require an export control license.