Tuesday, July 18, 2006

IPPR Paper on the Public Domain

Rufus Pollock has written a very readable position paper for the Institute for Public Policy Research entitled The Value of the Public Domain (114k, 18 pages pdf).

Traditionally, the public domain has been defined as the set of intellectual works that can be copied, used and reused without restriction of any kind. For the purposes of this essay I wish to widen this a little and make the public domain synonymous with ‘open’ knowledge, that is, all ideas and information that can be freely used, redistributed and reused. The word ‘freely’ must be loosely interpreted – for example the requirement of attribution or even that derivative works be re-shared, does not render a work unfree.

This public domain is very large. It includes the contents of the traditional public domain such as works originally subject to monopoly protection but where the protection has expired, for example Shakespeare’s plays, which were once subject to copyright, as well as items never subject to protection, for example the theory of relativity. It also includes open source software and work released under (some) Creative Commons licenses. As such, it consists of almost all of humanity’s intellectual output up until the very recent present (for patented ideas it excludes approximately the last 20 years and for copyrighted works approximately the last 100 years).

An age-old but evolving concept

One of the first printed texts of which we have record is a copy of the Buddhist Diamond Sutra, produced in China around 868AD. In it can be found the dedication: ‘for universal free distribution’. Clearly, the idea of public domain, that is, open access to knowledge, has been present since humanity first began to formally transmit and share ideas. It is also likely that the urge to keep ideas secret, particularly those that had ‘commercial’ value, is equally old.

With the development of trade and technology, particularly during the Renaissance in Europe, these parallel approaches of openness and secrecy continued to evolve but the tension between them also increased. With the introduction of formal monopoly rights such as patents and copyrights during the sixteenth and seventeenth century, there was now a halfway house of sorts whereby the monopoly (and the associated profits) of secrecy was combined with openness in the form of the disclosure of the work.

These alternatives of openness, secrecy and state-sanctioned monopoly have stayed with us down to the present day. While most of our ideas, particularly cultural ones, are ‘public domain’, free for anyone to use and reuse, a significant portion of the intellectual works and products created by the economies of the world are protected either by some form of intellectual property rights or by secrecy – or by both, as is the case with most proprietary computer software, for example.

However, there have also been considerable changes. On the one hand there has been a large increase, particularly over the last 30 to 40 years, in the scope and duration of intellectual property rights. On the other hand, and at the same time, especially in recent years, we have seen the rise of self-consciously open models of innovation, particularly in software where the ‘copyleft’ approach to knowledge licensing first
arose in the 1980s. (This is the system whereby copyright is inverted to sustain shared access to, and prevent proprietisation of, information by requiring, as a condition of access, that those who reuse the shared resource contribute back their modifications.)

However the most significant of all changes underlies these others, for it is the change in the role of knowledge in society and the economy. Terms such as the ‘information age’ or the ‘knowledge economy’are now commonplace and hard statistics point to the fact that in most western economies the information based service sector is now more important than manufacturing. These changes in turn result from, or at
least depend upon, a revolution in communication and computer technologies that has greatly reduced the cost of production, distribution and manipulation of knowledge. Whole industries that neither existed nor were imagined 50, and possibly even 20, years ago have grown up that exploit these new-found possibilities.

What do these vast changes mean for the production and dissemination of knowledge, as well as for their regulation and support by government? These are large questions and not ones that can be answered adequately here. Instead, this paper shall address a small part of this large picture by focusing on the public domain and its value to society, concentrating in particular on the way in which open, ‘public domain’,
approaches can generate commercial as well as societal value.

Too often this value has been unarticulated and thereby left vulnerable. While those who promote stronger intellectual property rights point to the tangible benefits that these offer their businesses, the corresponding costs to the public domain and its users are invisible or ignored. This paper seeks to redress the imbalance and, in doing so, to spur a re-orientation of innovation and information policy. Our current paradigm represents a form of monomania in which monopoly rights, in the form of intellectual property, displace all else from our thinking on this subject. It binds us to a narrow, and erroneous, viewpoint in which innovation is central but access is peripheral. The system it has engendered is now so distorted that its social and commercial costs in several key areas have become large. It is therefore high time to restore balance, in particular by taking proper account of the public domain and open approaches to knowledge production. It is only by doing so that we will be able to take full advantage of the possibilities offered by this digital age."

I like the Buddhist Diamond Sutra reference and we have to continually remind ourselves that the substance of the debate between open and closed systems has been around a lot longer than we have. The context and the technologies may have changed significantly but the key issues not very much.

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