Office of International Scientific and Technical Information Programs

1. The first major category of public-domain information may be further divided into three sub-categories. The first of these subcategories consists of information that IP rights cannot protect because of the nature of the source that produced it. The second comprises otherwise protectable information that has lapsed into the public domain because its statutory term of protection has expired. The third includes ineligible or unprotectable components of otherwise protectable subject matter.

1.a. In the United States, most of the information produced by the federal and state governments falls under the first subcategory of the public domain in which the source itself is not protectable. It constitutes by far the largest body of public-domain information used in research and education, both in terms of the volume of STI as well as in terms of the percentage of material produced. For example, the U.S. federal government alone spends more than $45 billion on its research and development programs. The bulk of the data and information produced in those programs automatically enters the public domain, year after year, with no proprietary restrictions (though not necessarily always easy to find), with the exception of certain limitations on access for reasons of national security or protection of personal privacy. A few well-known examples of the government's public-domain STI dissemination activities include the National Center for Biotechnology Information, the Defense Technical Information Center, and the USGS EROS Data Center. Federal science agency web sites now typically contain both direct and indirect access to their own and other related public domain STI resources. The STI generated by the governments of other nations also may be in the public domain, with some of it available internationally, though generally this is much smaller in both the total amount and as a percentage of the total.

1.b. The second subcategory of information that is not subject to protection under exclusive property rights is information that has lapsed into the public domain because it has exceeded the statutory term of protection (e.g., in the United States it is 95 years for corporate-produced copyrightable works, or an author's life plus 70 years, with similar and often shorter spans of protection in other nations). This too is an enormous body of literature and information with great cultural and historical significance. Because of the long lag time in entering the public domain, however, most of the information in this category lacks relevance to most types of state-of-the-art research once protection has lapsed. Nevertheless, as discussed below, a substantial portion of the material contained in even copyrighted works is unprotectable and in the public domain.

1.c. The final subcategory of information that is not subject to protection under exclusive IP rights consists of ineligible or unprotectable components of otherwise protectable types of information content, such as an idea, fact, procedure, system, method of operation, concept, principle, or discovery, all of which are expressly excluded from statutory protection in the United States and most other foreign jurisdictions. Thus, an idea or fact contained in an otherwise copyrighted work is unprotected and may be used freely. One of the largest categories of STI in the United States consists of noncopyrightable databases, or noncopyrightable content in otherwise copyrightable databases. This category of public-domain information, while highly distributed among all types of works, nonetheless plays a fundamental role in supporting research and education at all levels.

2. A second major category of public-domain information is information that otherwise qualifies as protectable under some IP regime, but that is contractually designated as unprotected. This category of information is created in the academic and private sectors, typically with government funding. Such information, especially scientific databases, is made freely available for others to use, frequently through deposit in government or university data centers or archives. STI produced in academia, not-for-profit institutions, or in industry, will be presumptively protectable, however, unless such material is expressly placed in the public domain. The public domain status of STI in this case must be actively created, rather than passively conferred. The norms and practices governing the placement of such STI in the public domain tend to be specific to a discipline, institution, or research program, and vary significantly even within the United States. This category of public-domain information tends to be highly relevant and important to scientific and technical research and education.

3. A final category of public-domain information consists of information that becomes available under statutorily created immunities and exceptions from proprietary rights in otherwise protected material. Under U.S. copyright law, such immunities and exceptions are known collectively as "fair uses." Instead of being in the public domain because it is unprotectable material, it is otherwise protected content that is allowed to be subject to certain unprotected uses under limited circumstances, subject to case-by-case interpretation. Fair uses include the use of proprietary information for purposes such as illustration, teaching, verification, and news reporting. Because many such fair uses are allowed only in the context of not-for-profit research or education, this category of "public-domain uses," though relatively small, is especially important in the context of STI. It also tends to be the most controversial area and is frequently in dispute by rights holders. Although traditional copyright law has not formally treated fair uses as "public domain" per se, nonetheless a number of the well-known and broadly practiced fair-use exceptions may be construed as functional equivalents of public-domain uses.

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Taken together, the body of scientific and technical data and information (STI) and other information in the public domain is massive and generally has been credited with contributing broadly to the economic, social, political, cultural, and intellectual development of our nation. As suggested above, public-domain STI has been important to the continued advancement of science, education, and technological innovation, not only in our country, but throughout the world. Despite the large extent and substantial importance of STI in the public domain, its role, value, and limits have not been examined in much detail. Those who have examined public domain STI have tended to look at only certain aspects.

In recent years, there have been growing legal, economic, and technological pressures on producers of public-domain information—STI and otherwise—forcing a reevaluation of the role of such information. New and revised laws have broadened, deepened, and lengthened the scope of intellectual property and neighboring rights in data and information, substantially redefining and attempting to limit the amount and types of information that is made available in the public domain. National security concerns also are constraining the scope of information that can be made publicly available. Economic pressures on both government and university producers of STI similarly have narrowed the scope of such data and information placed in the public domain, with resulting access and use restrictions on resources that were previously openly available to researchers, educators, and the public at large. Finally, technological advances in digital rights management for enforcing IP in various information products are presaging what may be the greatest potential restrictions on the amount and types of information made available in the public domain, not otherwise circumscribed by the attendant legal and economic pressures. Taken together, this confluence of factors is altering the landscape of STI in the public domain, with poorly understood and perhaps significantly under-appreciated consequences to our nation's preeminent research and education capabilities.

Some well-established mechanisms for preserving publicly available STI, such as public archives and data centers, nonetheless do exist in the government, university, and not-for-profit sectors. Moreover, innovative models for promoting various public-domain digital information resources are now being developed by different parties in the scientific, library, and legal communities. Because of the diversity of the subject matter and the institutions involved, however, most of these mechanisms and approaches are being implemented on an ad hoc basis, without much interaction.

The purpose of this symposium, therefore, was to bring together experts and managers in STI from the public and private sectors to provide their perspectives on the role and value that public-domain information provides in the context of research and education, to identify and analyze the many pressures that are being placed on the producers of public-domain STI, to describe and discuss the existing and proposed approaches for preserving the availability of such information in the public domain, and to identify issues that require further analysis. The main question that was addressed by the symposium participants was, What can the S&T community itself do to address these issues within the context of managing its own data and information activities? Enlightened new approaches to controlling and managing public-domain STI may be found to be desirable or necessary, and these need to be discussed and evaluated. The purpose of the symposium was expository and might lead to changes in science policy, rather than focus on or make any implied recommendations about existing, pending, or new legislation in this area. Another workshop will examine these issues in the international context, and will be held 10-11 March 2003 in Paris, France, in collaboration with several interdisciplinary committees of the International Council for Science and UNESCO.

Symposium Report

The report of the symposium is available in both hard copy and online via the National Academies Press. Please contact Amy Franklin for a copy of the report.

Steering Committee Members

All terms ended on January 31, 2002.