According to article 19 of the Universal Declaration of Human Rights1, the right to freedom of opinion and expression “includes the freedom to seek, receive and impart information and ideas through any media and regardless of frontiers”. Article 27(1) of the same Declaration provides for the “right freely to participate in the cultural life of the community ... and to share in scientific advancement and its benefits”. Thus, one of the ultimate goals of any society striving for human development is the empowerment of all its citizens through access to and use of information and knowledge. In the current information revolution and the emerging knowledge societies, “universal access” to information and communication technology (ICT), and particularly to global digital information networks2exemplified by the Internet, is essential for achieving this goal. Moreover, multilingualism in cyberspace is of vital and strategic importance in ensuring the right to information and cultural diversity. Today, 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 and usefully disseminated through the Internet, libraries, and other means to citizens and to a broad range of development actors such as 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. Furthermore, consideration of the role of such information should not be limited to a national context, because the emerging knowledge societies, as well as the basic human rights cited above, support the building of a global cross-border network of information and knowledge for the broader benefit and progress of humanity. There are numerous official resolutions, declarations, and reports issued by the United Nations and its specialized agencies, as well as by individual Member States, that support and justify the formulation of Policy Guidelines for the Development and Promotion of Governmental Public Domain Information. Among the most directly relevant sources, listed in the Selected Bibliography at the end of these Guidelines, special mention should be given to the UNESCO Recommendation on Promotion and Use of Multilingualism and Universal Access to Cyberspace adopted in 2003,3 and the provisions of the Declaration of Principles4 and the Plan of Action5 adopted later in that year by the World Summit on the Information Society (WSIS). The purpose of these Policy Guidelines is to build on this impetus to help develop and promote information in the public domain at the government level, with particular attention to information in digital form. The Policy Guidelines aim to better define governmental public domain information and to describe its role and importance, specifically in the context of developing countries; to suggest principles that can help guide the development of policy, infrastructure and services for provision of information produced by governments to the public; to assist in fostering the production, archiving and dissemination of government electronic public domain information for development, with emphasis on ensuring multicultural, multilingual content; and to help promote access of all citizens, especially including disadvantaged communities, to information required for individual and social development. The scope of these Policy Guidelines is limited to the discussion of key issues, principles, policies and procedures that can help to develop and promote the production, dissemination, preservation, and use of governmental public domain information within developing and least developed countries at the national level. The Policy Guidelines do not address public-domain information issues in the private sector and civil society, notably those concerning access to works of private creators. The Policy Guidelines are divided into three parts. Part I presents the definitions, context and rationale for developing and promoting governmental information in the public domain. Part II provides specific principles, policies, and procedures for producing, disseminating, and preserving governmental public domain information. Part III briefly addresses access to and use of governmental information that is protected by IP laws.
A review of the history of the term “public domain” shows that it has traditionally been associated with public land and has never had a universally accepted meaning in the context of information. Indeed, there is little in official public documents or even in the scholarly literature that deals definitively with this subject6. Most legal scholars would define public domain information by what it is not; that is, any information that is not proprietary, the yin to the proprietary yang. But such a definition is insufficient, for it does not adequately characterize or describe what public domain information in fact is, and provides no basis on which to evaluate its positive role and its value to knowledge societies, especially in the context of economic and social development. The UNESCO Recommendation on Promotion and Use of Multilingualism and Universal Access to Cyberspace provides the following definition:7 “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 any form of statutory protection including intellectual property rights, the protection of national security or public order, privacy laws and obligations of confidentiality. With respect to intellectual property, this means all information that is not eligible, or not eligible anymore, to protection, including:
All subject matter that previously fulfilled the conditions to be placed under copyright or other forms of intellectual property protection (such as patents or trade secrets) and was formerly protected, but that is not protected anymore because the term of protection has expired . For example, under copyright law, during the period of protection, the authors get economic rewards for their creations, but after the end of protection, everybody can freely access and use the work. Thus, once the period of statutory protection is over,8 copyrighted works join the vast and ever-increasing body of literature, art, music, and other forms of expression included within the world’s common cultural and intellectual heritage. The plays of William Shakespeare or old children’s stories that are in the public domain are well-known examples. The opportunities afforded to every individual who has access to this common human heritage are vast and profound;
All types of information elements that are genuinely ineligible for protection under any intellectual property right (e.g. those which cannot be considered as “works” under copyright law or as “inventions” under patent law) or do not fulfil the conditions set by IP laws (such as originality under copyright law).
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.