30 September 2002CODATA Conference1 POSITIVE FUNCTIONS OF THE PUBLIC DOMAIN IN SCIENCE Pamela Samuelson 2002 CODATA Conference 30 September 2002.

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

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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

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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

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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)

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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)

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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

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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

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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)

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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

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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

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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?

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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

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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

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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

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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)

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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

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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

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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

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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

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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

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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)