Policy guidelines for the development and promotion of governmental public domain information



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Original: English

POLICY GUIDELINES

FOR THE DEVELOPMENT AND PROMOTION OF

GOVERNMENTAL PUBLIC DOMAIN INFORMATION

United Nations Educational,



Scientific and Cultural Organization Paris, 2004Original: English (CI-2004/WS/?)


Policy Guidelines

for the Development and Promotion

of Governmental Public Domain Information


by

Paul F. Uhlir

United Nations Educational,

Scientific and Cultural Organization

The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.

Recommended catalogue entry:

Policy Guidelines for the Development and Promotion of Governmental Public Domain Information / prepared by Paul F. Uhlir. - Paris: UNESCO, 2004. - viii, 39 p. ; 30 cm. (CI-2003/WS/?)
I - Title
II - UNESCO
PREFACE
In keeping with 29 C/Resolution 28 of the UNESCO General Conference in 1997, which invited the Director-General to undertake action “to facilitate access to information in the public domain with the ultimate aim of building up a general electronic repository of all information of a public nature relevant to UNESCO’s fields of competence”, UNESCO included in its programme for the 2002-3 biennium the preparation of Guidelines to advise Member States on policies for the development and promotion of public domain information, taking account of both national needs and international practices.
A draft of the Guidelines, prepared by Mr Paul F. Uhlir (U.S.A.), was completed in early 2003, and the resulting document was published in English and French by UNESCO as the “Draft Policy Guidelines for the Development and Promotion of Public Domain Information” (CI-2003/WS/2). UNESCO then conducted a broad official review of the draft, as well as a peer review by a group of individual experts known to the Secretariat, which included a selection of participants in the International Symposium on Open Access and the Public Domain in Digital Data and Information for Science, held at UNESCO on 10-11 March 2003.
Appreciation is expressed to the fourteen UNESCO National Commissions which commented on the draft (those of Finland, France, Georgia, Germany, Israel, Italy, Japan, Jordan, Lithuania, Mexico, The Netherlands, Pakistan, Slovakia, Spain), to the government of the United States of America, and to the World Intellectual Property Organization (WIPO), as well as to the following individual experts:
Mr Edward Barrow

New Media Copyright Consultant

United Kingdom
Mr Carlos Correa

University of Buenos Aires

Argentina
Sir Roger Elliot

University of Oxford

United Kingdom
Mr Woody Horton

Consultant, U.S. National Commission on Libraries and Information Science (NCLIS)

Washington, D.C., U.S.A.
Mr Peter Schröder

Ministry of Education, Culture and Science

The Netherlands
Mr Tim Unwin

Department for International Development

London, United Kingdom
Mr Jan Windmüller

Ministry of Science, Technology and Innovation

Copenhagen, Denmark
Mr William A. Wulf

President, National Academy of Engineering

Washington, D.C., U.S.A.
UNESCO then appointed a university trainee with expertise in cyberspace law, Ms Isabelle Eray (Switzerland), to undertake an international analysis of public domain information policy in the areas recommended by the reviewers, and to propose a new structure of the Guidelines which would accommodate the suggested modifications. The proposed approach was refined by the Secretariat in consultation with the author, who was given a second contract to prepare the final version on the basis of the new structure and the international review.
The present final version of the document, whose title has been modified by addition of the word “Governmental” to reflect an increased emphasis on the responsibilities of governments to make public sector information available to citizens, is intended as a practical guide to assist in implementation of the relevant provisions of the Recommendation on Promotion and Use of Multilingualism and Universal Access to Cyberspace, adopted by the UNESCO General Conference in November 2003. It also represents a contribution to the implementation of the Plan of Action of the World Summit on the Information Society (WSIS), whose first session was held in Geneva on 10-12 December 2003, which specified (under paragraph 10.a. of Action Line C3) the need to “Develop policy guidelines for the development and promotion of public domain information as an important international instrument promoting public access to information.”
It is hoped that the Guidelines will be broadly useful to decision and policy makers at the national and international levels. However, it should be stressed that they are meant to be strictly advisory; they are not intended as a prescriptive or normative instrument.
Throughout the process of developing the Guidelines, the Information Society Division (Communication and Information Sector) which was responsible for their preparation as secretariat of UNESCO’s Information for All Programme, benefited from the close consultation and support of the Division of Arts and Cultural Enterprise (Culture Sector) which is responsible for implementing UNESCO's programme related to copyright.
Comments and suggestions for improvements are welcome and should be sent to:
Mr Boyan Radoykov

Information Society Division

UNESCO

7, place Fontenoy

75352 PARIS 07 SP

Fax: 33 (0)1.45.68.55.83

Email : b.radoykov@unesco.org


TABLE OF CONTENTS

EXECUTIVE SUMMARY


Part I: Why Governmental Public Domain Information is Important
One of the ultimate goals of any society is the empowerment of all its citizens through access to and use of information and knowledge, as a corollary to the basic rights of freedom of expression and of participation in the cultural life and scientific progress. In support of this goal, more and more governmental information is being produced and made available through the Internet and the World Wide Web. Some of this information has restrictions on public access and use because of intellectual property (IP) protection, national security, privacy, confidentiality, and other considerations. A great deal of it, however, can be openly disseminated through the Internet, libraries, and other means to citizens and to a broad range of development actors such businesses and schools. Whereas the focus of most policy analyses and law-making is typically on the protection of proprietary information, the role and value of public domain information, especially of information produced by the public sector, is not widely enough addressed and is generally poorly understood. The purpose of these Policy Guidelines is to help develop and promote information in the public domain at the government level, with particular attention to such information in digital form.
The UNESCO Recommendation on Promotion and Use of Multilingualism and Universal Access to Cyberspace provides the following definition: “Public domain information refers to publicly accessible information, the use of which does not infringe any legal right, or any obligation of confidentiality. It thus refers on the one hand to the realm of all works or objects of related rights, which can be exploited by everybody without any authorization, for instance because protection is not granted under national or international law, or because of the expiration of the term of protection. It refers on the other hand to public data and official information produced and voluntarily made available by governments or international organizations.”
Under this definition, information in the public domain covers two distinct notions:

  • On the one hand, “public domain information” can be defined as what is left outside the scope of copyright or other forms of statutory protection: it covers all that is not eligible or not eligible anymore, to such protection.

  • On the other hand, “public domain information” also refers to information of an intrinsically public nature; that is, certain types of information that are produced by public authorities (“government” in the broad sense) in the course of their duties, and that are seen as a public good. This “governmental public domain information” at the national and sub-national levels, to which can be assimilated some public domain information produced by public international organizations, is not, in principle, subject to appropriation..


Governmental public domain information is part of a broader category of “public sector information”. Certain public sector information may be protected on specific grounds.
The body of governmental - and other - information in the public domain is massive and may be credited with contributing broadly to the economic and social development of the entire world, as illustrated by the following examples:

  • One of the greatest values associated with placing governmental information in the public domain is transparency of governance and the promotion of democratic ideals: equality, democracy, openness. The more information that is openly available from the government and about the government, the less likely that government will be able to hide illegal acts, corruption and misrule.

  • Open and unrestricted dissemination of public information also enhances public health and safety, and the general social welfare, as citizens become better able to make informed decisions about their daily life, their environment, and their future.

  • Governmental public domain information can serve essential scientific and technical research functions in every society. Factual databases, many of which are collected by government entities or with government funding, are fundamental to the progress of science, to the advancement of technological innovation, and to an effective educational system.


Much of the value of public domain information derives from its use by the public. The positive effects of public domain information can be increased by enormous proportions when such information is placed on global digital networks.
Despite the great advances that have been made in ICT and information management technologies, well-documented and serious global imbalances exist in the form of a “digital divide”. The development and promotion of access to public information can help bridge that gap in two significant ways:

  • At the national level: In developing countries, where the production of information in the private sector may not be as active as that of the government, the information in the public sector typically constitutes a very large portion of the information produced within and about the country and can be an especially important resource for development.

  • At the international level: Because the Internet is an international network of networks that transcends all political boundaries, all public information that is placed online immediately becomes a part of the global information commons, available for exploitation for the benefit of developing countries and their citizens.

In both these cases, however, one of the greatest barriers to the use of available information is likely to be linguistic, requiring strategies to reduce obstacles to accessing the multicultural human heritage available on the Internet and through other communication media.
Part II: How to Develop and Promote Governmental Public Domain Information
Governments have a critical leadership role in expanding access to and use of public domain information. To fulfil this role, governments need to develop an integrated and comprehensive national information policy to develop and promote the production, dissemination, and use of governmental information in the public domain. The establishment of such a policy involves decisions in three main areas:
Scope of information to be made available

As a guiding principle, information produced by public entities in all branches and at all levels should be presumed to be available to the public, and any formal exceptions preventing citizens from accessing public information should be specifically justified and formulated as narrowly as possible. National governments should be encouraged to expand access to various types of public information resources and, if necessary, to re-assess the balance between the existing policies and practices for making those information resources available and the legal protections that restrict use or reuse of such information. In addition, all publicly funded inter-governmental organizations should provide open access to all their publications and public databases, especially to potential users in developing countries, free of charge.
Access to and use of public information as a legal principle
One of the major elements of a comprehensive approach to promoting access to and use of governmental public domain information is the adoption of a national “Freedom of Information” (FOI) law, providing for access by citizens on request to the information held by the government that is not otherwise made routinely available. Countries that do not yet have a FOI law for their public information should adopt one, following a comparative analysis of such similar laws in other countries, while those countries that already do have such a law may wish to further revise their existing legislation. Any exceptions to the principle of availability, such as national security restrictions, and the protection of personal privacy and of trade secrets, should be carefully balanced.
Freedom of Information laws are, however, not in themselves sufficient. In practice, such laws typically involve a bureaucratic, cumbersome, and relatively expensive process that the citizen must undertake in order to obtain information that is legally in the public domain and should be made public. Therefore, the government should also develop a comprehensive Information Policy Framework for the management and active dissemination of governmental information, as outlined below.
Comprehensive governmental Information Policy Framework.
The Policy Framework that addresses information management and dissemination should be broad enough to encompass information in both paper and digital formats, and should provide special guidance regarding electronic management and dissemination. The focus should always be on producing and disseminating public information that meets the needs of citizens as openly and inexpensively as possible, with special attention to multicultural or disadvantaged communities. Three main areas of action need to be addressed in developing the national public Information Policy Framework:

  • Creating the appropriate public information management structure;

  • Defining the public information management policy requirements; and

  • Adopting strategies on information systems and information technology management.

The following key procedural elements should be taken into account in developing the national Information Policy Framework:


1. The Policy Framework must reference all supporting reports and laws on which it is based.
2. In developing the Policy Framework and associated detailed implementation plan at the national level, it is essential to involve representatives of all major stakeholder groups in a consultative process.
3. Analytical factors that need to be considered are: legal, economic, institutional, social and cultural, research and educational. Specific applications areas or sectors with special information objectives and implementation requirements, such as health, environment, energy, transportation, finance and defence, also need individual consideration.
4. Following the completion and formal approval of the Information Policy Framework, the Chief Information Officers (CIOs) of all major government entities need to develop detailed plans for implementation of all the guiding policies within the context of the official activities and subject matter purview of these entities.
5. Because of the rapid changes continuously taking place in the information and communication sectors, the Information Policy Framework should be periodically reviewed and updated to keep it relevant and useful. Such a review should take place perhaps every 4-5 years, on a schedule fixed by the Framework.
6. A useful supplementary activity is a review of the policy approaches to public information management and technology taken by other countries. The lessons learned from the experiences of other governments in this area can help the national authorities to avoid some of the failures or difficulties experienced elsewhere, and to identify successful legal and policy models that might be adapted to the specific national context.
Part III: Access to and Use of Governmental Information that is Protected by Intellectual Property Laws
Copyright and other forms of IP protection are granted in some jurisdictions to public authorities for their works. Although these Policy Guidelines do not recommend this approach for the reasons presented above, a nation may decide to protect works produced by public entities because of traditions or to achieve national economic and cultural objectives in light of the costs and benefits.
It is important to emphasize that the application of IP laws to public information does not necessarily exclude the public from access to such information. Although IP laws can place extensive limits on the public’s re-use of that information, these laws do give public entities a broad range of options on how to organise access to the information for the public good, taking account of the citizens’ interests. Thus, government entities whose public information is protected by IP laws can provide open access to their information resources, or can even use permissive licenses that derogate from the full enforcement of available IP rights in order to allow greater freedom in the re-use of their information.
The information products and services provided by the private sector are frequently more efficient and of higher quality than those of the public sector, so that public-private partnerships can be highly beneficial in producing or distributing information on behalf of a government entity. However, if the protection of IP laws applies to such information, the government should carefully consider the balance between the legitimate IP restrictions on the access to and use of the information on the one hand, and the citizens’ rights and the broader social and economic interests of the nation on the other.
PART I: WHY GOVERNMENTAL PUBLIC DOMAIN INFORMATION IS IMPORTANT
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