The necessity of an actively ‘tagged’ digital public domain

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Michael Carroll makes a strong case that we need a specifically defined ‘digital’ public domain, which needs to be actively digitized, made accessible, and tagged and marked for easy usage by the authors and producers of the material, as a matter of public duty, in particular by the research community and universities who receive public money.

The following excerpts contains the definition of the digital public domain and his call to the research community.

The full text of his intervention is available here at

Introductory statement:

“The purpose of copyright law has been to promote learning and the progress of knowledge. Two features of copyright law should provide the guide for how to respond to access concerns. First, copyright is an author’s right. This is definitional….

Second,…copyright is a time-limited right. Copyright expires so that the public may ultimately gain unlimited access and use rights. This also is definitional….

Therefore, by design, all copyrighted works are destined for the public domain….”

1. On the need for a digital public domain:

Michael Carroll:

“In the age of the Internet, we need to reconceive the public domain as the Digital Public Domain. In the Digital Public Domain, it is not enough that a work is free from copyright restrictions. A positive commitment to universal access to the public domain requires first that public domain works be digitized or at least be subject to a protocol that enables digitization when cost effective.

Second, works free from copyright restrictions should be made accessible over the Internet. Mass digitization of the public domain promotes the goals of universal access, improved learning, and the progress of science.

Third, works free from copyright restrictions should not be subject to technological measures or contractual restrictions or “terms of use” that in any way inhibit members of the public from exercising their usage rights in public domain works.

Fourth, access and the absence of legal restrictions alone are insufficient. Those who search the Internet for information often do so for active purposes. It is not sufficient to find information that is topically relevant. The information also must be useful for the researcher’s purposes. Marking and tagging works with their use rights enables computers to search for information that is both topically relevant and useful.

From this principle follows the corollary that the digital public domain should be tagged and marked as such….

Consequently, those public and private bodies that laudably have been investing in efforts to digitize public domain works should increase the returns on their investment by marking and tagging public domain works as such. Creative Commons provides a metadata standard for digitally marking works with their use rights, the Creative Commons Rights Expression Language (ccREL). Specifically, Creative Commons provides a means of marking a public domain work as such. Creative Commons requires support to implement plans to update this protocol to provide more robust information about public domain works.”

2. The role of the research community

“Faculty authors and other professional researchers have a responsibility to manage their copyrights in a way that ensures public access to the scholarly record well before copyright expires in these works. Why? Because the standard justification for granting author’s rights does not neatly apply to these scholarly authors. They are motivated by the desire to be read and are not remunerated by journal publishers for publishing their work.

When authors have no need to limit access to their work for purposes of remuneration, they should make their work freely available to promote the progress of science. When researchers have been funded by the government or by private charities, it is inexcusable not to ensure reasonable and timely free public access to the fruits of this research consistent with copyright.

Progress has been made recently in improving free public access to recent scholarship. As directed by the United States Congress, the National Institutes of Health now requires researchers who accept NIH funds to ensure that NIH receives a copyright license to make peer-reviewed articles publicly available on the Internet no later than 12 months after the date of publication. Many public and private science funders in Europe, Canada, and Australia have similar policies, with 6 month deadlines.

Faculty authors are coming to the realization that the way they manage their publishing rights should reflect their core values and the university’s core commitment to disseminating knowledge. A number of faculties have adopted resolutions recommending open access, but these have led to very few results. Just as was the case when the NIH policy was voluntary, authors at these institutions generally continue to sign away their rights to make their work available on the Internet or fail to use such rights when they have them by depositing manuscripts in an open access repository.”

3. In conclusion:

“In sum, the initiatives to digitize public domain works and to provide open access to contemporary learning share the common goal of making the Internet a repository for human knowledge and a more powerful resource for researchers, students, teachers, and learners of all kinds around the world. Three principles derived from the purposes of copyright law, should guide these efforts: (1) the works should be freely available; (2) public domain works should be free from any contractual restrictions on use; and (3) the works should be marked with their use rights.”