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30 September 2002 CODATA Conference 1
POSITIVE FUNCTIONS OF THE PUBLIC DOMAIN
IN SCIENCE
Pamela Samuelson
2002 CODATA Conference
30 September 2002
30 September 2002 CODATA Conference 2
OVERVIEW
• Origins of public domain as a concept• Historic importance of the public domain
for science• The rise of intellectual property rights
affecting science• Current debates about the public domain• Steps scientists can take to preserve the
positive functions of the public domain
30 September 2002 CODATA Conference 3
PUBLIC DOMAIN ORIGINS
• IP and public domain are “invented” and related concepts
• “Real” property and “chattel” could be owned, but not intangibles (information)
• Keeping information secret or controlling access were the main ways to protect it
• Italian city states/Englan issued “patents” for specified times, including to scientists (Galileo) to incent/reward useful inventions
30 September 2002 CODATA Conference 4
BENEFITS OF PATENTS
• Exclusive rights as inducement to reveal secrets• Disclosure of inventions and how to make is
published in patents (quid pro quo)• Ideas, scientific methods & principles, laws of
nature not patentable (in public domain)• Research use exceptions in many patent laws; de
facto research exception in US• Right to practice invention once patent expired• That which is unpatented is in the public domain
30 September 2002 CODATA Conference 5
MORE ON ORIGINS
• Stationers Co. claimed perpetual rights in their “copies” – Crown granted SC exclusive rights to publish books in
exchange for suppression of heretical and seditious works (Star Chamber as enforcer)
– Among SC members, registration of book with SC conferred exclusive rights in that member
• Benefits to “science” from SC copyright:– publication enabled wider dissemination of knowledge
(byproduct initially, not purpose of SC copyright)
30 September 2002 CODATA Conference 6
STATUTE OF ANNE (1710)
• Purpose: to promote learning by encouraging learned men to write books (modern purpose)
• 14 years of protection for newly created works• 21 year transition period for already published
works• Required deposit of published books with major
research libraries (e.g., Oxford, Cambridge)• Donaldson v. Beckett established right to publish
works as to which copyright expired (this created the public domain for written works)
30 September 2002 CODATA Conference 7
COPYRIGHT & THE PUBLIC DOMAIN
• In US, no copyright for government works• Longtime presumption that published works are in
the public domain unless copyright explicitly claimed (reverse presumption today)
• Copyright could protect creative selection and arrangement of data, but not the data themselves
• Ideas, methods, scientific principles, facts dedicated to the public domain upon publication
• Fair use/private or educational use exceptions facilitated research uses
30 September 2002 CODATA Conference 8
RISE OF SCIENCE & THE PUBLIC DOMAIN
• Until late 20th century, IPRs played little role because scientific data, methods, & principles were not protectable by IPRs
• Much dissemination through scientific societies• Scientific journals evolved to disseminate results • Government funders required open access policy• Reputation was currency for important discoveries• Hard for scientists to get credit for discoveries if
kept secret
30 September 2002 CODATA Conference 9
LATE 20th C./EARLY 21st C.
• Expansion of patent and copyright realms means more of science is covered by IPRs– patenting of genomic information– patenting of research tools– patenting of algorithms, data structures– copyrights in computer programs & databases– copyrights getting longer (life + 70 years in US & EU)
and stronger (e.g., RAM copies, Texaco case ruled vs. fair use for researcher photocopying)
• Anti-commons problems arising (research impeded when too many rights to clear)
30 September 2002 CODATA Conference 10
LATE 20th C./EARLY 20th C.
• Scientific journals have become big business– gift economy among scientists led to indifference about
assigning copyrights to publishers – universities/research institutions object to pricing
policies (why pay twice for our scientists’ work?)– but scientists need access to journals, so libraries pay
• Universities and other research institutions have become major players in IPRs; spinoffs by faculty
• Licensing and technical controls limit uses (e.g., sharing), backed up by anti-circumvention rules
30 September 2002 CODATA Conference 11
EU DATABASE DIRECTIVE
• “Sui generis” right in data in databases• To induce investment in databases, developers get
15 years of exclusive rights to control extraction and reuse of data from the databases
• Protects data in copyrighted works as well• Recent German case: linking to data on the
Internet held to violate database right• Few other countries have adopted (so far) but
ongoing international discussions about it
30 September 2002 CODATA Conference 12
ELDRED v. ASHCROFT
• Copyright Term Extension Act of 1998 tacked on an additional 20 years to existing US copyrights (11th extension in 40 years; all works created before 1946 should be in PD by now)
• CTEA thwarted Eric Eldred’s plans to publish many works from 1920’s on the Internet
• Eldred challenged constitutionality under both the Copyright Clause & 1st Amend.
• Key question before Supreme Court: does the public domain have a positive value?
30 September 2002 CODATA Conference 13
CONSTITUTIONAL DEBATE
• I/8/8: CTEA impedes progress of science, rather than promoting it, as I/8/8 requires (lots of creators want to draw upon public domain works)
• I/8/8: CTEA doesn’t provide a quid pro quo for exclusive rights in violation of “limited times” requirement (perpetual copyright on the installment plan)
• 1st A: Eldred has a free speech/press right to publish works whose creation was induced long ago for a lesser term (Free Mickey Mouse!)
• 1st A: CTEA burdens too much speech to be const’l
30 September 2002 CODATA Conference 14
VARYING VIEWS OF THE PUBLIC DOMAIN
• Jack Valenti: public domain works are orphans– no one will invest in their preservation– no one will make them available without IPRs
• The public domain is a status for information as to which no property rights exist (like a void)
• The public domain is a vast repository of raw materials out of which new creations arise
• Eldred/Richard Epstein: I/the public has a property right in the public domain which cannot be taken away; violates public trust to extend
30 September 2002 CODATA Conference 15
MANY AMICI BRIEFS
• For Eldred: – Library ass’ns, Internet Archive, Intel– Historians, IP profs, College Art Ass’n
• For Ashcroft:– AAP, MPAA, RIAA, AOL Time Warner– AIPLA, IPO, Hatch, Sensenbrenner
• None from scientists or scientific organizations
30 September 2002 CODATA Conference 16
INTERNET ARCHIVE BRIEF
• Internet enables information to be made widely available on a global basis
• Internet enables new forms of publication (e.g., via preprint servers, home pages) and new kinds of services (e.g., wayback machine) on 24/7 basis
• Because of the Internet, the public domain can be more robust and vital than ever before
• Millions of works will be effectively lost to the public domain unless they can be posted on the Internet (in 20 years, it may be too late)
30 September 2002 CODATA Conference 17
IMAGINE A SCIENCE BRIEF
• The public domain plays a vital role in science– Basic building blocks of science need to be in the public
domain (data, methods, principles) if science is to continue to advance
– Freedom to share data & replicate results is essential, as is freedom to analyze data to gain new insights
• Scientific advance is critical to innovation, economic growth, and other social benefits (e.g., treatment of disease, environmental cleanup)
• Internet has enabled more effective scientific public domain and more rapid progress of science
30 September 2002 CODATA Conference 18
STEPS SCIENCE CAN TAKE
• Open source your software/open source your data
• Develop resources that will serve your communities (preprint servers, archives, databases, digital libraries)
• Negotiate with publishers about copyright assignments (they don’t really need this); don’t publish with firms with bad copyright policies
• Pay attention to IPR developments and assess impacts on science (then do something)
• Make policy suggestions to promote interests of science in public domain & balanced IPRs
30 September 2002 CODATA Conference 19
IPR DEVELOPMENTS
• Oppose Hollings bill in US: interactive digital devices would have to have standard technical measures built in (would make general purpose computer & much open source software illegal )
• Work on EU member state legislation to implement copyright directive (what exceptions benefit science? what about encryption research exception to anti-circumvention rules?)
• Elsewhere, be on lookout for EU-style database legislation and raise questions about it
30 September 2002 CODATA Conference 20
POLICY PROPOSALS
• Scientists can advocate that governments– not propertize the data they collect– make propertized data available on reasonable terms – condition research funding upon making data available
for reuse and publishing data along with results
• Scientists can urge institutions with which they deal to adopt open source policies or more favorable copyright policies
• Scientists can support creation of repositories of scientific data: open access/reasonable use policies
30 September 2002 CODATA Conference 21
ROLE FOR IPR?
• Much of scientific work requires substantial investments of time, $, energy
• Often, these costs must be recouped, especially in times of declining government subsidies
• IPRs enable recoupment• Prospect of financial rewards from IPRs may induce
some work that might otherwise not occur• Patents & copyrights also facilitate disclosure and
dissemination of data that benefit science• IPR pools can help with anti-commons problem
30 September 2002 CODATA Conference 22
CONCLUSION
• Doing science may be more fun and rewarding than paying attention to IPR rules, but these rules deeply affect science
• Science can articulate positive values of the public domain as part of a long-term strategy to promote IPR rules that promote science and preserve benefits of the public domain
• Proactive strategy is better than reactive• Science can make a difference (already has as to
database protection—thanks, Paul Uhlir)