The letter, jointly authored by leaders 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), provides detailed comments on the U.S. Department of Education’s proposed rule mandating open licensing for all copyrightable intellectual property produced via Department grants. While the organizations express support for the Department’s goals of expanding public dissemination and impact of educational materials, they caution that a uniform open licensing requirement would have unintended negative consequences. Specifically, the authors argue that such a policy could undermine universities’ ability to transfer technologies to the private sector, deter necessary private investment, and erode the quality, integrity, and appropriate stewardship of educational resources and technologies, especially those requiring further development or quality control.
The letter raises additional concerns about potential legal conflicts—especially relating to software and patentable IP under the Bayh-Dole Act—as well as unclear treatment of jointly or multiply funded projects. Questions are also posed regarding the enforceability of the open licensing mandate and the lack of empirical evidence to support the Department’s assertions about costs and commercialization. The authors point to existing university strategies that already enable wide dissemination through various forms of open licensing and internal or external repositories while retaining flexibility to ensure optimal outcomes for different types of materials. They commend the Department for maintaining special provisions for peer-reviewed publications, but strongly urge that the rule be reconsidered in favor of a more balanced, flexible approach developed with stakeholder input, so as to protect both public access and the long-term quality and commercialization potential of federally funded educational materials.
