Fundamental Research Available to the Public
If technology, technical data, or software is "publicly available" or in the "public domain," the export or transfer may be shared with any party (other than U.N.-embargoed countries) without a license.
(See also List Screening, Dabarment-Excluded Parties.)
Publicly available technology and software are not subject to export control.
However, with the exception of "publicly available" technical data, technology or software, virtually all other commodities, technical data, and software are subject to the export control regulations.
The EAR and ITAR define "publicly available" or "public domain" information differently. For the EAR (Part 734.7), the requirement is that the information has been, is about to be, or is ordinarily published. Under ITAR (Part 120.11) the information must have already been published.
Information becomes "published" or is considered as "ordinarily published" when it is generally accessible to the interested public through a variety of ways, including publication in periodicals, books, print, electronic or other media available for general distribution to any member of the public. (ITAR)
The EAR definition of "publicly available" includes releases at open conferences, meetings, or seminars in the U.S. or abroad, while ITARâ€™s definition of "in the public domain" restricts the exemption to releases at U.S. conferences. Certain encryption software is not considered publicly available under EAR.
Please note that, currently, the ITAR states that the performance of defense services or technical assistance relating to any defense article to any foreign party, even when using exclusively publicly available information, is an activity subject to export control. See 22 CFR Â§ 124.1(a).
If the item is not publicly available, it must be classified either under an Export Control Classification Number (ECCN) on the Commerce Control List (CCL) or under a Category Number on the US Munitions List (USML). Once properly classified on the CCL or USML, it is relatively easy to determine the applicable License, License Exception, or License Exemption requirements for any export. See Bureau of Security and Industry (BIS) and ITAR Licensing Guidelines for more information.