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 In those areas in which legislation is either outdated or missing, it may be necessary to enact to have enabling legislation before promulgating the framework.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:
What is the specific policy element being recommended?
Why is it being proposed (i.e. what is the current situation and why does it need to be changed)?
Who needs to be involved in the formation, approval and implementation of the policy (i.e. key individuals, institutions, and stakeholder groups)?
At which level does the policy implementation need to take place (i.e. the international, regional, national, sub-national levels)?
When does the policy need to be implemented and updated?
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.
PART III: ACCESS TO AND USE OF GOVERNMENTAL INFORMATION THAT IS PROTECTED BY INTELLECTUAL PROPERTY LAWS
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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