Fundamental Research Exclusion
The purpose of the Fundamental Research Exclusion is to enable universities to freely engage in research and allow foreign researchers to participate in basic research without requiring export licenses, the federal government has identified the “fundamental research exclusion.”
The exclusion applies to all research information that could be publicly disseminated. If an institution or researcher has accepted restrictions on the publication of results other than ordinary pre-publication review o accepted restrictions on who can participate, the research is no longer considered fundamental and may require additional controls. Please view Northeastern University’s Policy on Openness in Research.
The government defines fundamental research as meeting the following criteria:
- Basic or early applied research in science or engineering;
- The research must be conducted within the United States and not in any other jurisdiction;
- There may be no publication restrictions other than a limited review to ensure the protection of proprietary information, on the free and open publication of the research results in journals or other technical literature (regardless of whether there is any actual publication);
- There are no sponsor restrictions (e.g., an agency of the U.S. Government) on the nationality of personnel who can be involved in the research.
The Fundamental Research Exclusion does not apply to:
- Tangible items, material, equipment, or physical shipment of goods.
- Design and/or development of a tangible prototype.
- Encryption or cryptography software, software created to detect or bypass security.
- Specific software with access limitations by the provider.
- Research which is not intended for publication.
- Training, technology transfer, or providing a defense service.
- Some research conducted outside the United States.
- Consulting-type assistance or services.
Fundamental Research as defined under the NSDD, the ITAR, and the EAR
National Security Decision Directives (NSDD 189) on “Fundamental Research” is the National Policy on the Transfer of Scientific, Technical and Engineering Information, defines fundamental research as “… basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.”
The ITAR 120.34 Public Domain, defines fundamental research as “basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on the publication of scientific and technical information resulting from the project or activity, or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.”
The EAR §734.8 “Technology” or “software” that arises during, or results from fundamental research, fundamental research under the EAR means:
- Fundamental research. “Technology” or “software” that arises during, or results from, fundamental research and is intended to be published is not subject to the EAR.
- Prepublication review. “Technology” or “software” that arises during, or results, from fundamental research is intended to be published to the extent that the researchers are free to publish the “technology” or “software” contained in the research without restriction. “Technology” or “software” that arises during or results from fundamental research subject to prepublication review is still intended to be published when:
- Fundamental research definition. Fundamental research means research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.
Publicly Available, Public Domain, and Open Source
Information that is available to the public is excluded from export controls. However, there are differences between how the ITAR and EAR define this exclusion. While they share the idea that publicly available information should not be subject to export controls, they differ in how the information can be made publicly available. Additionally, the ITAR refers to information “in the public domain” while the EAR refers to “publicly available” information.
Public Domain (ITAR)
The ITAR states that information in the public domain that is published and that is generally accessible or available to the public is excluded from control under ITAR. See ITAR paragraph 120.34 for additional details on the definition of published and generally accessible or available to the public.
Information in the scope of the ITAR can be made publicly available only by the means described in section 120.11, or with the explicit authorization of the State Department.
- Through sales at newsstands and bookstores;
- Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
- Through second-class mailing privileges granted by the U.S. Government;
- At libraries open to the public or from which the public can obtain documents;
- Through patents available at any patent office;
- Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States;
- Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government department or agency (see also § 125.4(b)(13) of this subchapter);
- Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. as defined under ITAR.
Publicly Available (EAR)
Information in the scope of the EAR can be made publicly available by a person who is not restricted from doing so (e.g., restricted due to a non-disclosure agreement or a distribution restriction).
Refers to “publicly available technology and software” The EAR excludes from its control publicly available technology and software, except software classified and identified on the Commerce Control List (certain encryption software), that is already published or will be published. Information in the scope of the EAR can be made publicly available by a person who is not restricted from doing so (e.g., restricted due to a non-disclosure agreement or a distribution restriction). See EAR part 734.3(b) for details on the definition of publicly available and published. Examples of publicly available include:
- Books, newspapers, pamphlets, libraries both tangible and intangible documents
- Public dissemination (i.e., unlimited distribution) in any form
- Software with open-source code that is made publicly available
- Information presented at conferences, meetings, and seminars open to the public
- Information included in published patents
- Websites freely accessible by the public
- Subscriptions available without restriction to any individual who desires to obtain or purchase the published information
- To researchers conducting fundamental research.
“Open source” and “public domain” are commonly confused and used interchangeably. Open source is available to all users but is restricted by copyright laws, with rights and obligations for the user, whereas Public Domain Software is not restricted by copyright laws. From the export control perspective, open-source software can be considered public domain.
Open source generally refers to software in which the original source code is made freely available and may be redistributed and modified.