What can be decontrolled from export controls?
"In the public domain" means "technology" or "software" which has been made available without restrictions upon its further dissemination. This means it is already published. This decontrol does not apply to physical goods.
i) The intention to publish a paper containing controlled research data DOES NOT mean it is in the public domain. Export of controlled technology before publication is potentially a breach of Export Control legislation.
ii) The act of publishing a paper containing controlled technology in a format that is available to anyone without restriction (e.g., in a journal or preprint server) is not controlled. However, sharing of controlled technology as part of the publication process (such as with a reviewer overseas or peer review before publication) may require a licence. Equally sending controlled technology to a funder or collaborator before publication requires a licence. Publication must not be used as a means of sharing controlled technology and software with specific overseas collaborator(s) to bypass the Export regulations.
Note: published scientific papers are considered to be in the public domain and hence are allowed to be transferred to collaborators even when there are WMD concerns on the home institution. However, this is only applicable to what has been published and not what will be published in far or nearest future.
iii) Controlled software/algorithms can be placed on an open-source platform (such as GitHub) to be made available for anyone to download without restriction. This de-control is not applicable to the intention of placing the controlled software/algorithm on an open-source platform as a means of sharing controlled software/algorithm with specific overseas collaborator(s) to bypass the Export regulations.
iv) For technology to be in the public domain it must be freely available with no restriction other than copyright placed on its further dissemination, such as in a book, on a website, at an exhibition. It may come in many forms including general product information, brochures, photographs, diagrams, company presentations.
v) Technology is not in the public domain:
- If it needs to be obtained from a supplier who controls the supply
- Where access is restricted to certain persons, like membership of an institute or requiring passwords
- Where it is subject to the Official Secrets Act, or MOD or government security classifications such as commercially confidential information
- If it has been placed in the public domain in contravention of a statutory prohibition, for example classified material, as it is unlikely to be available without further restriction upon its dissemination
Further information from ECJU:
“Basic Scientific Research" means experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective. This means blue-sky type research without any practical goal or objective.
In practical terms, for research to be considered “basic scientific research” ALL THREE of the following criteria must be met:
- It is classed as low Technology Readiness Level (TRL): 1 to 3
- It has no links to industry, i.e., no industrial, commercial partner, collaborator, funder
- There is no collaborator involved which is imposing any conditions on publishing the results for the research (check clauses in your research and collaboration agreements, where the partner may be claiming IP ownership or restricting dissemination of the results)
Dual use technology may be de-controlled if it is the minimum information required for a patent application
If you are preparing a patent application, contact the Regulatory Compliance Team for assistance in assessing this de-control.
These decontrols cannot be applied
Any controlled samples you are sending out of the UK will remain controlled even if they are related to a project that falls under the “Basic Scientific Research” decontrol.
Also note that commercially available items within the UK (off-the-shelves items) are not exempt from UK export controls. Should you wish to export them, you should request the manufacturer or vender confirmation if it is controlled or not. If it is controlled, they should be able to provide you with the entry code. Fill in and submit an Export Controls Compliance request (online form) so that the Regulatory Compliance Team can prepare an application for an export licence.