================================================================= Rice University Computer and Information Technology Institute Questions and Answers About Export License GTDA (This file: EXPORT3) ================================================================= (This file was prepared by D. C. Toedt of Arnold, White & Durkee in Houston, dctoedt@mcimail.com. It is presented for general information and not a s a substitute for competent legal advice about specific situations.) Suggestion: Read the file EXPORT1 first. ================================================================= Supplement No. 5 to Part 779--Questions and Answers--General License GTDA (The materials below were published in the Federal Register by the Department of Commerce; they have been edited slightly for readability.) This Supplement No. 5 contains explanatory questions and answers about General License GTDA. This Supplement is divided into six sections according to topic as follows: Section A: Publication of technical data and exports of technical data that has been or will be published. Section B: Release of technical data at conferences. Section C: Educational instruction. Section D: Research, correspondence, and informal scientific exchanges. Section E: Federal contract controls. Section F: Commercial consulting. Section G: Software. Section H: Available in a public library. Section I: Miscellaneous. --------------------------------------------------------------- Section A: Publication Question A(1): I plan to publish in a foreign journal a scientific paper describing the results of my research, which is in an area listed in section 779.4(d). Do I need a validated license? Answer: No. General License GTDA permits unrestricted export to any destination not only of technical data that are already publicly available, but of technical data that are made public by the transaction in question (section 779.3(a)(1)). Your research results would be made public by the planned publication. You would not need a validated license. Question A(2): Would the answer differ depending on where I work or where I performed the research Answer: No. Of course, the General License would not relieve you from any restrictions on publications that your employer or another sponsor of your research may have imposed. Question A(3): Would it make any difference if I published in a foreign journal? Would I need a validated license to send the paper to the editors for review? Answer: No to both questions. General license GTDA authorizes submission of papers to editors or reviewers of journals, including foreign journals, if the intention is that the papers will be published if favorably received. (See section 779.3(b), last paragraph). Question A(4): The research on which I will be reporting in my paper is supported by a grant from the Department of Energy. The grant requires prepublication clearance by DOE. Does that make any difference under the Export Administration Regulations? Answer: No; GTDA would still apply. But if you publish in violation of the controls you have accepted in the grant, you will be subject to appropriate administrative, civil, and possible criminal sanctions under other laws. Question A(5): We provide consulting services on the design, layout, and construction of integrated circuit plants and production lines. A major part of our business is the publication for sale to clients of detailed handbooks and reference manuals on key aspects of the design and manufacturing processes. A typical cost of publishing such a handbook and manual might be $500; the typical sales price is around $15,000. Does general license GTDA cover publication and sale of such handbooks or manuals? Answer: No. The price is above the cost of reproduction and distribution (section 779.3(b)(1)). Thus, you would need some other form of license before you could export any of these handbooks or manuals. Question A(6): My Ph.D. thesis on a subject listed in section 779.4(d) has never been published for general distribution. However, it is available at the institution from which I took the degree. Do I need a validated license to send another copy to a collegue overseas? Answer: That may depend on where in the institution it is available. If it is not readily available in the university library (e.g., by filing in open stacks with a reference in the catalog), it is not "publicly available" and the GTDA license would not be available on that ground. The GTDA license would still be applicable if your Ph.D. research qualified as "fundamental research" under section 779.3(c). If not, however, you will need some other form of license before you can send a copy out of the country. Question A(7): We sell electronically recorded information, including software and databases, at wholesale and retail. Our products are available by mail order to any member of the public, though intended for specialists in various fields. They are priced to maximize sales to persons in those fields. Do we need validated licenses to sell our products to foreign customers? Answer: You would not need a validated license for otherwise controlled technical data or software if the technical data and software are made publicly available at a price that does not exceed the cost of production and distribution to the technical community. Even if priced at a higher level, General License GTDA authorizes the export if the technical data or software source code is in a library accessible to the public (section 779.3(b)(1)). --------------------------------------------------------------- Section B. Conferences Question B(1): I have been invited to give a paper at a prestigious international scientific conference on a subject listed in section 779.4(d). Scientists in the field are given an opportunity to submit applications to attend. Invitations are given to those judged by a panel of scientific peers to be the leading researchers in the field, and attendance is by invitation only. Attendees will be free to take notes, but not make electronic or verbatim recordings of the presentations or discussions. Some of the attendees will be foreigners. Do I need a validated license to give my paper? Answer: No. General license GTDA is available for release of information at an open conference. The conference you decribe fits the definition of an open conference (section 779.3(a)(1) and (b)(4)). Question B(2): Would it make any difference if there were a prohibition on making any notes or other personal record of what transpires at the conference? Answer: Yes. To qualify as an "open" conference, attendees must be permitted to take notes or otherwise make a personal record (although not necessarily a recording). If note taking or the making of personal records as altogether prohibited, the conference would not be considered "open." Question B(3): Would it make any difference if there were also a registration fee? Answer: That would depend on whether the fee is reasonably related to costs and reflects an intention that all interested and technically qualified persons should be able to attend (section 779.3(b)(4)(ii)(A)). Question B(4): Would it make any difference if the conference were to take place in another country? Answer: No. Question B(5): Must I have a validated license to send the paper I propose to present at such a foreign conference to the conference organizer for review? Answer: No. General license GTDA authorizes submission of papers to foreign organizers of open conferences or other open gatherings with the intention that the papers will be delivered at the conference, and so made publicly available, if favorably received (section 779.3(b), last paragraph). Question B(6): Would the answers to any of the foregoing questions be different if my work were supported by the Federal Government? Answer: No. You may use GTDA to export the papers, even if the release of the paper violates any agreements you have made with your government sponsor. However, nothing in the Export Administration Regulations relieves you of responsibility for conforming to any controls you have agreed to in your Federal grant or contract. --------------------------------------------------------------- Section C: Educational Instruction Question C(1): I teach a university graduate course on design and manufacture of very high-speed integrated circuitry. Many of the students are foreigners. Do I need a validated license to teach this course? Answer: No. Release of information by instruction in catalog courses and associated teaching laboratories of academic institutions is licensed under general license GTDA (section 779.3(d)). Question C(2): Would it make any difference if some of the students were from Communist Bloc countries? Answer: No. Question C(3): Would it make any difference if I talk about recent and as yet unpublished results from my laboratory research? Answer: No. Question C(4): Even if that research is funded by the Government? Answer: Even then the general license would apply, but the Export Administration Regulations would not release you from any separate obligations you have accepted in your grant or contract. Question C(5): Would it make any difference if I were teaching at a foreign? university? Answer: No. Question C(6): We teach proprietary courses on design and manufacture of high-performance aircraft and missiles. Is the instruction in our classes covered by the GTDA license? Answer: That instruction would not qualify as "release of educational information" under section 779.3(a)(3) because your proprietary business does not qualify as an "academic institution" within the meaning of section 779.3(d). Conceivably, however, the instruction might qualify as "release at an open * * * seminar, * * * or other open gathering" under section 779.3(b)(4). The conditions for qualification of such a seminar or gathering as "open," including a fee "reasonably related to costs (of the conference, not of producing the data) and reflecting an intention that all interested and technically qualified persons be able to attend," would have to be satisfied. ----------------------------------------------------------------- Section D: Research, Correspondence, and Informal Scientific Exchanges Question D(1): Do I need a validated license in order for a foreign graduate student to work in my laboratory? Answer: Not if the research on which the foreign student is working qualifies as "fundamental research" under section 779.3(c). In that case, the GTDA general license is available. Question D(2): Our company has entered into a cooperative research arrangement with a research group at a university. One of the researchers in that group is a Polish national. We would like to share some of our proprietary information with the university research group. We have no way of guaranteeing that this information will not get into the hands of the Polish scientist. Do we need to obtain a validated license to protect against that possibility? Answer: No. General License GTDA authorizes the disclosure of information to any scientists, engineers, or students at a U.S. university in the course of industry-university research collaboration under specific arrangements between a firm and the university, provided these arrangements do not permit the sponsor to withhold from publication any of the information that he provides to the researchers. However, if your company and the researchers have agreed to a prohibition on publication, then you must qualify for another general license or obtain a validated license before transferring the information to the university. It is important that you as the corporate sponsor and the university get together to discuss whether foreign nationals will have access to the information, so that you may obtain any necessary export authorization prior to transferring the information to the research team. Question D(3): My university will host a prominent scientist from the Soviet Union who is an expert on research in engineered ceramics and composite materials. Do I require a validated license before telling our visitor about my latest, as yet unpublished, research results in those fields? Answer: Probably not. If you performed your research at the university, and you were subject to no contract controls on release of research results agreed to with a sponsor of the research, your research would qualify as "fundamental research" (section 779.3(c)(2)). Unrestricted export of information arising during or resulting from such research is covered by general license GTDA (779.3(a)(2)). You should probably assume, however, that your visitor will be debriefed later about anything of potential military value he learns from you. If you are concerned that giving such information to him, even though licensed, could jeopardize U.S. security interests, the Commerce Department can put you in touch with appropriate Government scientists who can advise you. Write to Department of Commerce, Bureau of Export Administration, Office of Technology and Policy Analysis, P.O. Box 273, Washington, DC 20044. Question D(4): Would it make any difference if I were proposing to talk with a Soviet expert in the Soviet Union? Answer: No, if the information in question arose during or resulted from the same "fundamental research." Question D(5): Could I properly do some work with him in his research laboratory inside the Soviet Union? Answer: Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience, and such an export is subject to the Export Administration Regulations (section 779.1(b)(1)(iii) and (2)(iii) and section 779.2). Such an export must be licensed. If any of the knowledge or experience you export in this way is not covered by general license, you would need a validated license. Question D(6): I would like to correspond and share research results with a Soviet-Bloc expert in my field, which is listed in section 779.4(d). Do I require a validated license to do so? Answer: Not as long as we are still talking about information that arose during or resulted from research that qualifies as "fundamental" under the rules spelled out in section 779.3(c). Question D(7): Suppose the research in question were funded by a corporate sponsor and I had agreed to prepublication review of any paper arising from the research? Answer: Whether your research would still qualify as "fundamental" would depend on the nature and purpose of the prepublication review. If the review is intended solely to ensure that your publications will neither compromise patent rights nor inadvertently divulge proprietary information that the sponsor has furnished to you, the research could still qualify as "fundamental." But if the sponsor will consider as part of its prepublication review whether it wants to hold your new research results as trade secrets or otherwise proprietary information (even if your voluntary cooperation would be needed for it to do so), your research would no longer qualify as "fundamental." As used in these regulations it is the actual and intended openness of research results that primarily determines whether the research counts as "fundamental" and so comes under general license GTDA. Question D(8): In determining whether research is thus open and therefore counts as "fundamental," does it matter where or in what sort of institution the research is performed? Answer: In principle, no. "Fundamental research" is performed in industry, Federal laboratories, or other types of institutions, as well as in universities. The regulations introduce some operational presumptions and procedures that can be used both by those subject to the regulations and by those who administer them to determine with some precision whether a particular research activity is covered. Recognizing that common and predictable norms operate in different types of institutions, the regulations use the institutional locus of the research as a starting point for these presumptions and procedures. Nonetheless, it remains the type of research, and particularly the intent and freedom to publish, that identifies "fundamental research"--not the institutional locus (section 779.3(c)). Question D(9): I am doing research on high-powered lasers in the central basic-research laboratory of an industrial corporation. I am required to submit the results of my research for prepublication review before I can publish them or otherwise make them public. I would like to compare research results with a scientific colleague from an East Bloc country and discuss the results of the research with her when she visits the United States. Do I need a validated license to do so? Answer: You probably do need a validated license (section 779.3(c)(4)). However, if the only restriction on your publishing any of that information is a prepublication review solely to ensure that publication would compromise no patent rights or proprietary information provided by the company to the researcher your research may be considered "fundamental research," in which case you may be able to share information under the GTDA general license. Note that GTDA will not be available if the prepublication review is intended to withhold the results of the research from publication. Question D(10): Suppose I have already cleared my company's review process and am free to publish all the information I intend to share with my colleague, though I have not yet published? Answer: If the clearance from your company means that you are free to make all the information publicly available without restriction or delay, the GTDA license will apply and you will not need a validated license for this exchange (section 779.3(c)(4)). Question D(11): I work as a researcher at a Government-owned, contractor-operated research center. May I share the results of my unpublished research with foreign nationals without concern for export controls under the Export Administration Regulations? Answer: That is up to the sponsoring agency and the center's management. If your research is designated "fundamental research" within any appropriate system devised by them to control release of information by scientists and engineers at the center, it will be treated as such by the Commerce Department, and the GTDA license will apply. Otherwise, you would need some other form of license, except to publish or otherwise make the information public (section 779.3(c)(3)). --------------------------------------------------------------- Section E: Federal Contract Controls Question E(1): In a contract for performance of research entered into with the Department of Defense, we have agreed to certain national security controls. DOD is to have ninety days to review any papers we proposed before they are published and must approve assignment of any foreign nationals to the project. The work in question would otherwise qualify as "fundamental research" under section 779.3(c). Does the GTDA license cover information arising during or resulting from this sponsored research? Answer: Any "export" inconsistent with the controls you have agreed to will not qualify for export under GTDA as "fundamental research." Any "export" consistent with the controls will qualify for export under GTDA as "fundamental research." Thus, if you abide by the specific controls you have agreed to, you need not be concerned about violating the Export Administration Regulations. If you violate those controls and export information as "fundamental research" under section 779.3(c), you may subject yourself to the sanctions provided for under the Export Administration Regulations, including criminal sanctions, in addition to administrative and civil remedies for breach of contract. Question E(2): Do the Export Administration Regulations restrict my ability to publish the results of my research? Answer: The Export Administration Regulations are not the means for enforcing the national security controls you have agreed to. If such a publication violates the contract, you would be subject to administrative, civil, and possible criminal penalties under other law. --------------------------------------------------------------- Section F: Commercial Consulting Question F(1): I am a professor at a U.S. university, with expertise in design and creation of submicron devices. I have been asked to be a consultant for a "third-world" company that wishes to manufacture such devices. Do I need a validated license to do so? Answer: Quite possibly you do. Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience that is subject to the Export Administration Regulations (section 779.1(b) (1)(iii) and (2)(iii), and section 779.2). Such an export must be licensed. If any part of the knowledge or experience you export in this way is not covered by general license, you would need a validated license. --------------------------------------------------------------- Section G: Software Question G(1): Does General License GTDA authorize the export of software in machine readable code when the source code for such software is publicly available? Answer: If the source code of a software program is publicly available, then the machine readable code compiled from the source code is software that is publicly available and therefore eligible for General License GTDA. Question G(2): Does General License GTDA authorize the export of software sold at a price that does not exceed the cost of reproduction and distribution? Answer: Software in machine readable code is publicly available if it is available to a community at a price that does not exceed the cost of reproduction and distribution. Such reproduction and distribution costs may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions either in your company or in a third party distribution system. In your company, such costs may not include recovery for development, design, or acquisition. In this case, the provider of the software does not receive a fee for the inherent value of the software. Question G(3): Does General License GTDA authorize the export of software sold at a price BXA concludes in a classification letter to be sufficiently low to qualify the particular software for General License GTDA? Answer: In response to classification requests, BXA may choose to classify certain software as eligible for General License GTDA even though it is sold at a price above the costs of reproduction and distribution as long as the price is nonetheless sufficiently low to qualify for such a classification in the judgment of BXA. --------------------------------------------------------------- Section H: Available in a Public Library Question H(1): Does General License GTDA authorize the export of information available in a library and sold through an electronic or print service? Answer: Electronic and print services for the distribution of information may be relatively expensive in the marketplace because of the value vendors add in retrieving and organizing information in a useful way. If such information is also available in a library--itself accessible to the public--or has been published in any way, that information is "publicly available" for those reasons, and the information itself remains eligible for General License GTDA even though you access the information through an electronic or print service for which you or your employer pay a substantial fee. Question H(2): Does General License GTDA authorize the export of information available in an electronic form in a library at no charge to the library patron? Answer: Information available in an electronic form at no charge to the library patron in a library accessible to the public is information publicly available even though the library pays a substantial subscription fee for the electronic retrieval service. Question H(3): Does General License GTDA authorize the export of information available in a library and sold for more than the cost of reproduction and distribution? Answer: Information from books, magazines, dissertations, papers, electronic data bases, and other information available in a library that is accessible to the public qualifies for General License GTDA. This is true even if you purchase such a book at more than the cost of reproduction and distribution. In other words, such information is "publicly available" even though the author makes a profit on your particular purchase for the inherent value of the information. --------------------------------------------------------------- Section I: Miscellaneous Question I(1): The manufacturing plant that I work at is planning to begin admitting groups of the general public to tour the plant facilities. We are concerned that an export license might be required if the tour groups include foreign nationals. Would such a tour constitute an export? If so, does General License GTDA authorize this type of export? Answer: EAR section 779.1(b) defines exports of technical data to include release through visual inspection by foreign nationals of U.S.-origin equipment and facilities. Consequently, you must obtain export authorization prior to permitting foreign nationals to tour your facilities. Such an export qualifies under the "publicity available" provision of General License GTDA so long as the tour is truly open to all members of the public, including your competitors, and you do not charge a fee that is not reasonably related to the cost of conducting the tours (section 779.3(a)(1)). Question I(2): Does General License GTDA authorize the export of information not in a library or published, but sold at a price that does not exceed the cost of reproduction and distribution? Answer: Information that is not in a library accessible to the public and that has not been published in any way, may nonetheless become "publicly available" if you make it both available to a community of persons and if you sell it at no more than the cost of reproduction and distribution. Such reproduction and distribution costs may include variable and fixed cost allocations of overhead and normal profit for the reproduction and distribution functions either in your company or in a third party distribution system. In your company, such costs may not include recovery for development, design, or acquisition of the technical data or software. The reason for this conclusion is that the provider of the information receives nothing for the inherent value of the information. Question I(3): Does General License GTDA authorize the export of information contributed to an electronic bulletin board? Answer: Assume each of the following: 1. Information is uploaded to an electronic bulletin board by a person that is the owner or originator of the information; 2. That person does not charge a fee to the bulletin board administrator or the subscribers of the bulletin board; and 3. The bulletin board is available for subscription to any subscriber in a given community regardless of the cost of subscription. Such information is "publicly available" and therefore eligible for General License GTDA even if it is not elsewhere published and is not in a library. The reason for this conclusion is that the bulletin board subscription charges or line charges are for distribution exclusively, and the provider of the information receives nothing for the inherent value of the information. Question I(4): Does General License GTDA authorize the export of patented information fully disclosed on the public record? Answer: Information to the extent it is disclosed on the patent record open to the public is eligible for General License GTDA even though you may use such information only after paying a fee in excess of the costs of reproduction and distribution. In this case the seller does receive a fee for the inherent value of the technical data; however, General License GTDA is nonetheless available because any person can obtain the technical data from the public record and further disclose or publish the information. For that reason, it is impossible to impose export controls that deny access to the information. Dated: September 25, 1989.