Export of controlled items - Exemptions from export license requirements (De-controls)
De-controls
There are certain exemptions to controls (also known as de-controls) that apply to large portion of activities taken at the University. When de-control applies, an item that meets the technical requirements of listed dual-use item will no longer be considered a controlled item subject to an export license requirement (including publication). These de-controls are explained below.
Information that is already in the public domain means software or technology that is available without restriction upon its further dissemination (copyright restrictions do not remove technology or software from being in the public domain). Key considerations are following:
- Software or technology must already be available to anyone without restriction e.g. on a website, at an exhibition or a conference open to the public;
- Software or technology is not exempt if access to it is in any way restricted, except for technology that it is available to anyone without distinction in return for payment (e.g., a standard subscription fee for a journal), in which case it is exempt;
- Software downloaded from a publicly available repository under open-source software (OSS) license terms is exempt as it is information that is already in the public domain. Please note, however, that this exemption does not apply to a newly written software code that will be uploaded to a publicly available repository by a member of Aalto community. Such new code is controlled if it meets with the control requirements set out in Annex I to the EU Dual-Use Regulation, in the national control list or in the EU common military list. Please see the latest versions of such lists at Control lists | Aalto University. If the new code is controlled, it cannot be uploaded to the repository without prior authorisation.
- Research intended to be published is not exempt until after it is published. Sending unpublished research work outside EU e.g. in the course of teaching, research collaboration or for peer review is not exempt;
- The act of releasing or publication is not sufficient for becoming de-controlled. Thus, publication of controlled information without license (proper authorization) amounts to violation of export controls; and
- Typically, education given at University, in particular in studies for bachelor鈥檚 or master鈥檚 degrees, will qualify for this de-control. Be mindful that sometimes distinction between education and research is obscure.
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. Only technology (i.e. specific information) may be de-controlled as basic scientific research. Key considerations are following:
- Technology is exempt if it concerns purely experimental or theoretical work, undertaken to solely obtain new knowledge of the fundamental principles of phenomena or observable facts;
- Work is likely to be basic scientific research if the sole intended output is a published article in a peer reviewed scientific journal provided that technological readiness level remains low (please see below more details on technological readiness level);
- Work is likely to be basic scientific research if it is not directed towards a specific practical aim nor addressing a specific technical problem (applied research is not considered basic scientific research);
- Technological readiness level (TRL) and prevalence of industry funding may be used to assist in determining whether this de-control applies. TRL 1 and 2 are generally considered basic scientific research. TRL 3 and 4 are to be assessed on a case-by-case. TRL greater than 4 is not considered basic scientific research. Please see Technology Readiness Level (TRL) | Aalto University for explanation of TRLs. Research that is externally funded by an industry partner is more likely to result in commercial development indicating that resulting research output may not qualify as basic scientific research; and
- This de-control does not apply to software.
The minimum necessary information for a patent application means that minimum information needed to submit a patent application is exempt from export controls and once the patent information is published in the public domain, it is no longer subject to export controls. Key considerations are following:
- It is not defined what entails minimum necessary information. It is generally understood as the information needed to meet the filing requirements as determined by the European Patent Office or the patent offices of the EU member states; and
- This de-control does not apply to category 0 technology (nuclear materials, facilities and equipment).
Software that is generally available to the public means software that is sold from stock at retail selling points, without restriction, and designed for installation by the user without further substantial support by the supplier. This de-control does not release information security software mentioned in Category 5, Part 2 of Annex I, which are subject to certain additional criteria before being de-controlled as mass market.1 Annex I is the EU list of dual-use items whose latest version can be read at Control lists | Aalto University.
1 Category 5, Part 2 of Annex I contains Cryptography Note that de-controls certain information security items.
Please note that the above de-controls do not apply to any tangible items such as equipment (or components thereof), chemicals or materials, with the exception of certain mass market information security products.1 Please also note that the so-called catch-all controls, which impose export license requirements on the basis of the intended end-use of an item, are applicable regardless of whether the item itself is controlled or not, and therefore apply also to items that are de-controlled . Equally, sanctions regulations that prohibit the provision of 鈥渢echnical assistance or other services鈥 to specific countries, such as the Russian Federation, apply also to the provision of support that consists exclusively of the transmission of de-control information (such as providing support services that are based on public domain information, e.g., on common office equipment or software).
As for military items qualifying as technology (items under category ML 22 in the Common Military List of the European Union) the de-controls in the public domain, basic scientific research and minimum necessary information for patent application are applicable.
In the event University or a member of Aalto community wishes to rely on any of the above de-controls it must be ensured that such reliance is based on correct facts and correct interpretation of law.
1 Category 5, Part 2 of Annex I contains Cryptography Note that de-controls certain information security items.