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

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II.4.4. Key procedural elements for the development of a national Information Policy Framework
a. The national Information Policy Framework must reference all supporting reports and laws on which it is based. In those areas in which legislation is either outdated or missing, it may be necessary to enact to have enabling legislation before promulgating the framework. The public domain information policy is an important part of the broader national Information Policy Framework.
b. In developing a national Information Policy Framework and associated detailed implementation plan, it is essential to involve representatives of all major stakeholder groups in a consultative process. Such a consultative approach will help ensure that key issues are identified and addressed, and that the consulted groups feel some ownership in the final results.
c. A number of factors need to be systematically addressed for each individual policy element. Analytical factors that need to be considered are: legal, economic, institutional, social and cultural, research and educational. Specific application areas or sectors with special information objectives and implementation requirements, such as health, environment, energy, transportation, finance and defence, many of which correspond to the mandates of the nation’s major ministries, departments or agencies, also need individual consideration. Policy formation and implementation factors should respond to the following specific questions:

  1. What is the specific policy element being recommended?

  2. Why is it being proposed (i.e. what is the current situation and why does it need to be changed)?

  3. Who needs to be involved in the formation, approval and implementation of the policy (i.e. key individuals, institutions, and stakeholder groups)?

  4. At which level does the policy implementation need to take place (i.e. the international, regional, national, sub-national levels)?

  5. When does the policy need to be implemented and updated?

  6. How, specifically, should the policy be implemented (the procedures or mechanisms by which the policy will be brought into effect)?

d. Following the completion and formal approval of the Information Policy Framework, CIOs of all major government entities need to develop detailed plans for implementation of all the guiding policies within the context of their official activities and purview. The development of specific implementation plans will help ensure that the policies are acted upon, and that they are implemented in an appropriate and efficient manner consistent with the specific conditions and needs of each organization’s activities. These separate implementation plans should be completed soon after the formal adoption of the Framework (e.g. within one year).
e. Because of the rapid changes continuously taking place in the information and communication sectors, the Information Policy Framework should periodically be 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.
f. A useful supplementary activity that should be considered in the development of the Information Policy Framework 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 should 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.

Throughout the world, original literary and artistic works are protected by copyright. Copyright protection applies to the expression of ideas resulting in original works, but not to the ideas themselves. Such protection is now broadly recognized as important to promoting human creativity through the production of all types of original works. It provides creators with incentives in the form of recognition and the possibility to derive fair economic rewards for their works. It also encourages broad dissemination by helping to assure that creative works can be made available to the public with legal protection against unauthorized copying or redistribution.
Copyright is intended as a means to enrich the cultural, social and economic development of a nation by protecting the personal recognition and economic rewards of the author.35 Yet, the right granted to the author or to the subsequent rights holder is not absolute, but rather subject to limitations in favour of specific uses by third parties under certain conditions. Thus, as copyright law has evolved, a proper balance between the rights of the author or other rights holder, and the broader interests of society, has been of paramount concern.
As noted in Part I, in some jurisdictions copyright protection and other forms of IP rights are granted to public authorities for their works. Although these Policy Guidelines do not recommend this approach for the reasons presented in sections 1-3 of Part II, a nation may decide to protect works produced by public entities because of traditions or for other reasons, such as protecting the moral rights of authors.
For example, the Member States and Affiliated Member States of the European Union generally allow application of copyright protection to most types of public information, while excluding from such protection official texts of a legislative, administrative or legal nature, and their official translations, pursuant to the discretion provided by article 2(4) of the Berne Convention.36
The European Union also has adopted a Directive on the Legal Protection of Databases,37 which has established a new exclusive property right for database producers in the compilations of non-copyrightable information. The objective of this Directive was to promote and protect substantial investments in such compilations, in light of the perceived lack of protection for costly collections of unoriginal information. The right created under this Directive protects the database producer against unauthorized extraction or re-use of substantial parts of the database’s content. This protection also may be applied to information collected and organized in databases by public entities.
This Directive, which has been implemented in the national legislation of all European Union Member States and most Affiliated States, has been criticized by some legal scholars, and by some scientific and library communities, for greatly diminishing the amount of factual information in the public domain by imposing restrictions on the use of otherwise unprotected data.38 At the same time, the states that have adopted this new law have not to date reported any serious difficulties in its implementation.
Nevertheless, 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 considerable 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.
Open access may be defined as a means to make protected information openly and freely available online or through other media by the rights holder, who retains some, or all, of the exclusive rights that are granted under statutory IP laws (e.g. the right to be named as author every time the work is quoted). All types of public and private sector sources may provide open access to their information products. Open access is therefore an important option for making IP-protected public information broadly available to the public, particularly using the Internet, and greatly improving its potential to support economic and social development.39 It is also possible to use a permissive license to place an IP-protected work in the public domain, with an express waiver of all economic rights. The public domain status of the information in this case must be actively created by the rights holder.40 Permissive, public-use licenses may be used as well to establish user rights that fall between all rights reserved under copyright and pure public domain status.41
Finally, governments are free to select the appropriate approach, or mixture of approaches, to manage their public domain or proprietary information in order to achieve national economic and cultural objectives in light of the costs and benefits.
The important potential role of the private sector in creating information for a government entity or for distributing public information needs to be considered as well. 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, so long as the public interest in any such arrangement is adequately considered and protected. Public-private partnerships can play an important role in creating and widely disseminating databases integrating public domain and proprietary information, for example in connection with large-scale digitization projects of information in national archives, libraries and museums.
At the same time, as the Commission of the European Communities has pointed out: “in some cases, the commercial reuse of public sector information may however raise questions as to the boundaries and limitations on the role of the different actors. Once private sector interests enter the market for public information the safeguarding of access for all citizens may become more difficult.”42 This may occur when a Freedom of Information Act establishes access to and use of public information as a principle, without clearly specifying any responsibilities of or restrictions on the requestors concerning further dissemination or exploitation of the particular information requested. It also can happen in the case where a government entity provides an exclusive license to a single private-sector entity to distribute its public information, or where a private-sector entity obtains public information that subsequently becomes unavailable from the original government source.43
In conclusion, in those situations in which either the government applies the protection of IP laws to the public information that it produces, or the private-sector is involved in producing or distributing information on behalf of a government entity, the government should carefully consider the balance between legitimate IP restrictions on the access to and use of the information on the one hand, and citizens’ rights and the broader social and economic interests of the nation on the other, as outlined above in these Policy Guidelines.


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http://books.nap.edu/catalog/5504.html .
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National Research Council (forthcoming 2004), Julie M. Esanu and Paul F. Uhlir, eds., Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium, National Academies Press, Washington, DC (Abstracts and presentations available at: http://www.codata.org/archives/2003/03march/03march-presentations.htm).
Organisation for Economic Co-operation and Development (OECD) (1980), “The OECD Guidelines on the Protection and Transborder Flows of Personal Data, 64 p., available at: http://oecdpublications.gfi-nb.com/cgi-bin/OECDBookShop.storefront/EN/product/932002011E1/ .
OECD (2004), Declaration on Access to Research Data from Public Funding, adopted on 30 January 2004 in Paris at the Meeting of the OECD Committee for Scientific and Technological Policy at Ministerial Level, available at: http://www.oecd.org/document/15/0,2340,en_2649_201185_25998799_1_1_1_1,00.html (see Annex 1).
Office of Management and Budget (1994), Circular A-130, “Management of Federal Information Resources,” U.S. Government Printing Office, Washington, D.C., available at: http://www.whitehouse.gov/omb/circulars/a130/a130trans4.html .
Pira International (2000), Commercial Exploitation of Europe’s Public Sector Information, Report for the European Commission, Directorate General for the Information Society. Executive summary available at: http://www.ekt.gr/cordis/news/eu/2001/01-01-19econtent/econtent_study2.pdf .
Reichman, J.H. (2002), “Database Protection in a Global Economy”, Revue Internationale de Droit Economique, 455-504.
Reichman, J.H. and Paul F. Uhlir (Winter/Spring 2003), “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment,” 66 Law and Contemporary Problems, p. 315-462, available at: http://www.law.duke.edu/journals/lcp/downloads/LCP66DWinterSpring2003P315.pdf .
UNESCO (2004), Collection of National Copyright Laws, available at: http://portal.unesco.org/culture/en/ev.php@URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html .
UNESCO (21 November 2003), Recommendation on the Promotion and Use of Multilingualism and Universal Access to Cyberspace and Report by the Director-General (31 C/25), available at: http://portal.unesco.org/ci/ev.php?URL_ID=13475&URL_DO=DO_TOPIC&URL_SECTION=201&reload=1082057417 .
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UNESCO (1999), 30 C/Resolutions 37 and 41, available at: http://unesdoc.unesco.org/ulis/cgi-bin/ulis.pl?database=gctd&req=2&by=2&ord=1&sc1=1&sc2+value%3D=&look=cfg2&sc2=1&dc=30+C%2FResolutions .
UNESCO (1997), 29 C/Resolution 36, available at: http://unesdoc.unesco.org/ulis/cgi-bin/ulis.pl?database=gctd&req=2&by=2&ord=1&sc1=1&sc2+value%3D=&look=cfg2&sc2=1&dc=29+C%2FResolutions .
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UNDP (1999), Human Development Report 1999: Globalization with a Human Face, Oxford University Press, New York. 172 p., available at: http://hdr.undp.org/reports/global/1999/en/ .
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1 United Nations General Assembly (1948), referenced in the Selected Bibliograhy.

2 I.e. networks combining informatics and telecommunications, also sometimes referred to as “telematics” networks.

3 See UNESCO (21 November 2003) in the Selected Bibliography, particularly the section on “Development of Public Domain Content”.

4 WSIS (2003) in the Selected Bibliography; see in particular Article 26 specifies that "A rich public domain is an essential element for the growth of the Information Society, creating multiple benefits such as an educated public, new jobs, innovation, business opportunities, and the advancement of sciences. Information in the public domain should be easily accessible to support the Information Society, and protected from misappropriation. ...."

5 WSIS (2003) in the Selected Bibliography, see in particular Action Line C3, paragraph 10.a) specifying 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.”

6 However, for a recent, extensive treatment of the many important facets of public domain information, see Boyle, James, special editor (2003) in the Selected Bibliography.

7 UNESCO (21 November 2003), op. cit., note 3, see the Appendix (Definitions).

8 The minimum term of copyright protection is 50 years after the creator’s death, cf. the Berne Convention for the Protection of Literary and Artistic Works, Paris Act of 24 July 1971, as amended on 28 September 1979 (http://www.wipo.int/treaties/en/ip/berne/index.html). In the United States and the European Union, the term of protection is life of the author, plus 70 years. In addition, in the United States, the statutory period of protection for corporate works (works made for hire) is either 95 years from the first publication, or 120 years from creation, whichever is shorter. Many developing countries have enacted only the minimum terms of protection. Other forms of statutory protection, such as classification of documents under national security statutes, personal privacy, and other confidential information have various periods of protection as well. These other forms of statutory restrictions on governmental information are discussed in more detail in section II.3.

9 Commission of the European Communities (1999), Chapter III (referenced in the Selected Bibliography).

10 For a more complete discussion of FOI laws, see section II.3.

11 See Part III for a brief discussion of such public-private relationships.

12 Commission of the European Communities (2001), p. 16 (referenced in the Selected Bibliography).

13 See Longworth, Elizabeth (2000) in the Selected Bibliography.

14 E.g., in the UK, the copyright in material produced by a government department (“public bodies with Crown Status”) belongs to the Crown. Her Majesty’s Stationary Office (HMSO) manages and licenses Crown copyright material.

15 E.g., in the United States, federal government information is excluded from copyright protection under Title 17 of the United States Code, section 105 (2000). For a compilation of national copyright laws see UNESCO (2004) in the Selected Bibliogaphy.

16 See section II.3 and Part III.

17 This section is based primarily on the study by Elizabeth Longworth (2000) - see the Selected Bibliography.

18 See further comments on database protection in Part III, and generally OECD (2004) and National Research Council (1997, 2003, and forthcoming, 2004) - referenced in the Selected Bibliography.

19 See the U.S. federal government information portal at: http://www.firstgov.gov/ .

20 Weiss, Peter (2003), “Borders in Cyberspace: Conflicting Government Information Policies and Their Economic Impact”, in National Research Council (2003) - referenced in the Selected Bibliography.

21 A similar comparison and result can be made with regard to publicly generated geo-spatial data and other categories of information – see Pira International (2000), referenced in the Selected Bibliography.

22 See generally, Pira International (2000) op. cit., note 21.

23 See, e.g., in the Selected Bibliography, The World Bank (1999) and United Nations Development Programme (2001).

24 See Longworth, Elizabeth (2000) in the Selected Bibliography.

25 Uhlir, Paul, “Discussion Framework,” in National Research Council (2003), p. 6 - referenced in the Selected Bibliography.

26 See, for example, Council of the European Union, 29 January 2002, Directive on public access to environmental information, Brussels, 11878/01 REV 1, promoting open or low-cost access to and minimum restrictions on reuse of environmental information by the E.U. Member States.

27 See Banisar, David (2002) in the Selected Bibliography.

28 For a comprehensive survey of all FOI laws worldwide see Banisar, ibid.

29 See, e.g., the Open Society Institute's Justice Initiative and the Campbell Public Affairs Institute of Syracuse University, “National Security and Open Government: Striking the right balance”, at: http://www.maxwell.syr.edu/campbell/opengov/ .

30 United Nations High Commissioner for Human Rights’ Guidelines for the Regulation of Computerised Personal Data Files (Resolution 45/95 of 14 December 1990) at: http://www.unhchr.ch/html/menu3/b/71.htm - the guidelines concern computerized personal data files (from both public and private sectors) and leave to Member States an option to extend the guidelines to manual files. See also, OECD (1980) in the Selected Bibliography.

31 Banisar, op. cit., note 27.

32 This section is based on section 8(a) of the U.S. Office of Management and Budget Circular A-130 (referenced in the Selected Bibliography).

33 For a listing and description of E-Governance initiatives worldwide, see: http://www.egovlinks.com/ .

34 For information about the UNESCO programme for the Preservation of Digital Heritage, see Abid, Abdelaziz, and Boyan Radoykov, “Access and Preservation in the Information Society”, Museum International, Sept. 2002, p. 64.

35 While in the “droit d’auteur” system prevelant in continental Europe, “copyright law is based on respect for the artist’s creative work and is centred on the author”, the Anglo-American tradition aims rather at the proper exploitation of the work – see Lepage, Anne (2003) in the Selected Bibliography.

36 European Commission (1999), op. cit., note 9, p. 15.

37 Directive 96/9/EC of the European Parliament and of the Council on 11 March 1996 on the Legal Protection of Databases, 1996 O.J. (L77) 20.

38 See generally, Reichman, J.H. (2002) in the Selected Bibliography.

39 See, Commission on Intellectual Property Rights, United Kingdom (2002) in the Selected Bibliography. See also, National Research Council (forthcoming 2004).

40 See, e.g., the permissive public-use licensing options developed by the Creative Commons at: http://www.creativecommons.org/ .

41 Ibid. See also Reichman, J.H. and Paul F. Uhlir (2003) in the Selected Bibliography.

42 Commission of the European Communities (1999), op. cit., note 9, p. 7.

43 See section II. above.

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