Yesterday I explained how the proposed regulations for the Intellectual Property Rights from Publicly Financed Research are unconstitutional. This post examines the confusion between two distinct concepts, ‘the public domain’ and ‘open source’ aka ‘the commons’.
The distinction between the public domain and the commons created by open licences is well known to intellectual property lawyers, especially software lawyers, who regularly encounter open source. However since the regulations confuse the two terms I’ll set it out briefly.
Prof James Boyle at Duke University has written an excellent book on the Public Domain, its both scholarly and easily accessible to non-lawyers. If your work involves research, science, technology, art, culture or knowledge then its a worthwhile read, if you are an IP lawyer its a necessity. The book ‘The Public Domain‘ is available for download without payment here, under a Creative Commons Attribution Share Alike Non Commercial 3.0 licence.
That doesn’t mean that the book is in the public domain. One can only use the book according to the terms of that licence. The licence allows you to freely download the book, to translate it, and to send copies to your friends but if you do translate it, then your translation must be under an equivalent licence.
On the other hand if the book was in the public domain like these books, then you could create a version over which you could claim rights in other words you could make an all rights reserved version of the book. You can’t do that with Prof Boyle’s book because Prof Boyle retains the copyright. He gives away some rights, but keeps others. He explains the difference like this:
“The term “commons” is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. … Some would say it is a commons only if the whole society has access. That is the view I will take here. The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others…So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works.” (p39)
This distinction is not only clear to lawyers, David Bolliera journalist turned technology policy expert has also released a book under an open licence entitled Viral Spiral (free download) and he describes the difference in non lawyer terms here:
“The public domain is an open-access regime available to all; it has no property rights or governance rules. The commons, however, is a legal regime for ensuring that the fruits of collective efforts remain under the control of that collective. The GPL, the CC licenses, databases of traditional knowledge, and sui generis national statutes for protecting biological diversity all represent innovative legal strategies for protecting the commons.”
Being a lawyer I’d want to complicate Bollier’s description just a little, the public domain is subject to governance rules, rules which allow the incorporation of the public domain into an all rights reserved intellectual property claim, but don’t permit the exclusion of others from that element of the public domain. So for example one can use a mathematical formula in a patent, the patent can exclude others from making a similar invention but they can use the formula elsewhere. Another example would be that one can copy a text in the public domain for example Bleak House, and claim copyright (a peculiar type of copyright called a published edition) not in the copy but in a reformatted version. As a result someone can’t run off hundreds of copies of your new edition although of course someone else can put out their own printed version of Bleak House.
However the regulations don’t reflect this distinction. Proposed Regulation 2 says in part (my italics):
“(12) In a specific case where a recipient does not wish to protect intellectual property governed by the Act because it wants to place such intellectual property in the public domain through open-source systems, the recipient must apply to NIPMO for approval in prescribed Form IP1, that such intellectual property be placed in the public domain through open-source systems.
(13) When making the appiication under sub-regulation (12), a recipient will be required to demonstrate to NIPMO the following considerations that are impacted by the intellectual property:
(a) it is in the public interest that the intellectual property is in the public domain through open-source systems;
…(14) NIPMO must, in making a decision under sub-regulation (12), consider the considerations demonstrated by the recipient and strike a balance of the following:
(c) the needs of the people of the Republic that could be serviced by such intellectual property, and in particular whether such needs would be best serviced by placing the intellectual property in the public domain through opensource systems or protection through established means;”
There are similar formulations elsewhere in the regulations. So what is the problem? The problem is that some results of research belong in the public domain, and some require what the Act and regulations refer to as ‘protection’ but which would be better described as ‘control’ and that control can best be achieved through open licences, licences which indeed ‘protect’ knowledge by ensuring that uses remains open.
The phrase ‘or protection through established means’ is the most troubling, because it ignores of the decades old success of FOSS, Free Open Source Software, in the computer industry, and of the history of science itself which regarded knowledge as a commons, until the recent incursion of Thatcherite economics. Both of these are more far more ‘established’ than the recent American fad for software patents.
The regulations should simply exempt research results which are best protected by being placed in the commons, for example, software which is open source software should be placed in a category that exempts researchers and research institutions from having to apply for it to be patented/non patented. Others, such as genetic data, are best placed in the public domain, so that knowledge will advance faster. The South African research community is best placed to create guidelines.
However the regulations don’t do this, instead they require that every result which is best placed in the public domain, or protected in the commons by an open licence should require that busy researchers have to pause their research while waiting for permission from an administrative bottleneck.