“Fundamental Research” is defined in export control regulations as “Basic and applied research in science and engineering, 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, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons…” Note that these provisions may not apply to certain types of Encryption software except certain publically available encryption object code software.
University based Fundamental Research:
- Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research, as described below in this section. (“University” means any accredited institution of higher education located in the United States.)
- Prepublication review by a sponsor of university research solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research. However, release of information from a corporate sponsor to university researchers where the research results are subject to prepublication review, is subject to the EAR.
- Prepublication review by a sponsor of university research solely to ensure that publication would not compromise patent rights does not change the status of fundamental research, so long as the review causes no more than a temporary delay in publication of the research results.
- The initial transfer of information from an industry sponsor to university researchers is subject to the EAR where the parties have agreed that the sponsor may withhold from publication some or all of the information so provided.
- University based research is not considered “fundamental research” if the university or its researchers accept (at the request, for example, of an industrial sponsor) other restrictions on publication of scientific and technical information resulting from the project or activity. Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed.
- If a university or its researchers accept specific national security controls on a research project or activity sponsored by the U.S. Government, Fundamental Research will not apply to any export or reexport of such information in violation of such controls, even if the information is publicly available. However, any export or reexport of information that is consistent with the specific controls may nonetheless be made under this provision