Exclusions & Exemptions from Export Controls
Technology or software that is publicly available is typically not subject to U.S. export controls, including the deemed export rule. This includes technology or software that:
- Is already published or will be published (referred to as the Publicly Available/Public Domain Exclusion);
- Arises during or results from fundamental research (referred to as the Fundamental Research Exclusion); or
- Is educational as defined in the regulations (referred to as the Education Exclusion).
Each of these exclusions and some potential limitations are described in greater detail below.
Publicly Available/Public Domain Exclusion
- Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter either free or at a price that does not exceed the cost of reproduction and distribution;
- Readily available at libraries open to the public or at university libraries;
- Patents and open (published) patent applications available at any patent office; or
- Release at an open conference, meeting seminar, trade show or other open gathering.
Certain published encryption software and publicly available object code meeting specific requirements.
Limitations: It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.
Fundamental Research Exclusion
Fundamental research is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education where the resulting information is ordinarily published and shared broadly within the scientific community.
Such research can be distinguished from proprietary research and from industrial development, design, or production where the results are typically restricted for proprietary reasons or specific national security reasons.
Information resulting from fundamental research is typically excluded from export controls. As a result, a license is not required to release information that qualifies as fundamental research to a foreign national.
Limitations: The Fundamental Research Exclusion may be unavailable if an employee or the university accepts any restrictive clause or condition that:
- Forbids or restricts the participation of foreign nationals;
- Gives the sponsor a right to approve publications resulting from research;
- Restricts access to and disclosure of research results; or
- Otherwise violates the openness in research.
Education Exclusion
The educational exclusion includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions. In most cases, a license is not required to share with foreign nationals information concerning general scientific, mathematical or engineering principles commonly taught in universities.
Limitations: It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.