While University research has traditionally been free of governmental regulation, ECLs have the potential to substantially impact research and researchers in most fields of science and engineering working at USU. If research involves specified technologies, the ECLs may require that the University obtain prior federal approval before allowing foreign nationals to participate in the research, before partnering with a foreign company, or before sharing research results in any manner (including by publication or presentation at conferences) with persons who are not U.S. citizens or permanent resident aliens.
Fortunately, even if an item appears on one of the lists of controlled technologies, most of the research at USU will be excluded from regulation under ECLs as a result o the exclusion for fundamental research (as long as there are no restrictions on publication of the research or other restrictions on dissemination of the information) or, in some cases, as long as the research or information is made public or is intended to be made public. Fundamental research, as used in the ECLs, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the U.S. where the resulting information either is ordinarily published and shared broadly in the scientific community or where the resulting information has been or is about to be published.
Fundamental research is distinguished form research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not qualify as fundamental research if:
- The institution accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information or to insure that publication will not compromise patent rights of the sponsor; or
- the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher
Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways.
- Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline.
- Published or ordinarily published material also includes the following: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, seminar, trade show, or other open gathering.
- A conference is considered “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 (but no necessarily a recording) of the proceedings and presentations.
- In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published.
It is important that faculty and their researchers understand their obligations under the regulations and follow them.
The consequences of violating the regulations can be severe, and include loss of research funding, fines, and/or prison time. Faculty can be held personally liable for failure to comply with the ECLs.