(Posted January 2006)
 

THE IMPORTANCE OF THE PUBLIC DOMAIN
By Anita R. Eisenstadt

A robust public domain also contributes to a democratic society: Much of the U.S. government's published information is now available electronically. (AP/WWP)

A customer at the U.S. Government Printing Office bookstore, where most of the published information is in the public domain. (AP/WWP)

The patent and copyright clause of the U.S. Constitution (Article I, Section 8, Clause 8) that provides Congress with the power "[t]o promote the Progress of Science and useful Arts," speaks of "securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." The insertion of the phrase "for limited times" shows that the Founding Fathers of the United States realized that it is critical to balance the intellectual property interests of authors and inventors with society's need for the exchange of ideas. They achieved this balance by limiting the term of the exclusive right and allowing the growth of an unrestricted "public domain." Just as a functioning intellectual property system can generate significant cultural and economic benefits, a robust public domain also contributes to a democratic society, a strong economy, and the advancement of science.

The term "public domain" refers to materials and information that are not protected by intellectual property rights (IPR). Information in the public domain is available for the public to use without prior authorization or restrictions on reuse. In the United States, this includes factual information¹ and works created by federal government employees in the scope of their employment. The public domain also includes works subject to copyright protection, but for which such protection has expired, been renounced (such as information contractually designated as unprotected), or been abandoned.

1 Note that the European Database Directive adopted in 1996 created a new type of intellectual property protection (sui generis) for databases, restricting certain uses of factual information compiled in databases.

Public domain is different from "open access," which typically refers to works that are copyright-protected, but whose authors or publishers have chosen to make the work freely available to the public. Even if works are in the public domain, users should still acknowledge the source of the work, since failure to do so could constitute plagiarism.

The U.S. government, producer of the single largest public body of scientific and educational information, is one of the world's greatest contributors to the public domain. Its Office of Management and Budget's Circular A-130, "Management of Federal Information Resources," recognizes that government information is a valuable national resource and that the free flow of information between the government and the public is essential to a democratic society. U.S. government practices also have promoted broad dissemination of information generated by federal government funding. Grantees who receive federal government funding are strongly encouraged to share the results of their research.

International and intergovernmental organizations -- UNESCO, the United Nations' World Summit on the Information Society, the International Council for Science (ICSU), and the Committee on Data for Science and Technology (CODATA) -- have focused on the importance of the public domain for both developed and developing countries.

Certainly, there is tension in finding the optimal balance between the public domain and intellectual property protection. It is essential to promote the broad dissemination of knowledge and information while ensuring that authors and inventors receive appropriate protection for their work. The approaches to resolving this tension are almost as diverse as the governments seeking to resolve it. However, one thing is clear: Free and forward-moving societies need both.