Frequently Asked Questions About the Public Domain

About this FAQ:

This FAQ about the public domain has been re-edited for the sixth time after it first appeared in Dutch language. The original Dutch version was the result of an extensive "Public Research" called "Public Domain 2.0", carried out by the Society for Old and New Media (Waag Society) in Amsterdam in the beginning of 1998. The project should be seen as an attempt to reassert public agency in the information age, not as a given, but as a sphere which urgently needs to be reinvented to address the conditions of the unfolding era of global information and communication systems.

 

1 - WHAT IS THE PUBLIC DOMAIN?

First of all the public domain as a social and cultural space should be distinguished from its juridical definition. The public domain is traditionally understood as a commonly shared space of ideas and memories, and the physical manifestations that embody them. The monument as a physical embodiment of community memory and history exemplifies this principle most clearly. Access, signification, disgust, and appropriation of the public monument are the traditional forms in which the political struggles over collective memory and history are carried out.

Juridical Definition:

1. Land owned directly by the government
2. The realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone (Date: 1832)
   (Source: Webster Dictionary – www.m-w.com/dictionary)

Commentary:

Esma Moukthar: "What we today call the 'public domain' consists of a multiplicity of places and virtual spaces, in which people do gather, but not primarily to find differences, but to find agreement. Agreement with that which at that particular moment constitutes your chosen identity. Thus the differences search for their own place and direction. Each their own public domain as an extension of what is private."

Moukthar contrasts this definition with Hanna Arendt's; "The space created by the plurality of people".

(Source: Esma Moukthar, "Publiek domein: privé-domein", MA Thesis, University of Amsterdam, 1998).

 

2 - WHAT IS THE PUBLIC DOMAIN 2.0?

Public Domain 2.0 is a design call for future public spaces in digital media environments. Spaces which are neither dominated by commercial interests (market driven), nor monopolised by the state. Apart from publicly accessible information, active public participation is a distinctive characteristic of the Public Domain 2.0. The public in part determines the design and content of this new public space.

Many discussions about the "network society" (4) tend to emphasise either the role of industry, or that of the state. Notably absent in these discussions is the third sector; social and cultural organisations, organisations for mental and health care, non-governmental organisations (NGOs), and community and interest groups.

Commentary:

"New production processes and new media are (indeed) forcing us to reconfigure our notions of what might constitute public space and the public domain. But this should not induce us to restrict our focus to the virtual domain. Although I agree that it is 'where the action is' in the sense that everything in our culture is reconfiguring around virtual flows; (flows of information, flows of technology, flows of organizational interaction, flows of images, sounds and symbols). And I realize that these flows are not just one element in the social organization, they are an expression of processes 'dominating' our economic, political and social life.

PLACES do not disappear.

In the wider cultural and political economy the virtual world is inhabited by a cosmopolitan elite. In fact put crudely elites are cosmopolitan and people are local. The space of power and wealth is projected throughout the world, while people's life experience is rooted in places, in their culture, in their history."

(Source: David Garcia – "Some thoughts on the Public Domain", 8 February 1998)

Computing definition of "public domain":

(PD) The total absence of (copyright) protection. If something is "in the public domain" then anyone can copy it or use it in any way they wish. The author has none of the exclusive rights which apply to a copyright work.

The phrase "public domain" is often used incorrectly to refer to (freeware) or (shareware), (software which is copyrighted but is distributed without (advance) payment). Public domain means no copyright – no exclusive rights. In fact the phrase "public domain" has no legal status at all in the UK.

(Source: The Free On-line Dictionary of Computing, February 15, 1998)

2.1 - What is the Digital Commons

Perhaps another name for the public domain 2.0, possibly a better one! This term has been introduced by the founders of the Sarai new media initiative in Delhi, after they first published a 01 reader on the public domain in January 2001. The term refers to the concept of the commons, commons culture, the House of Commons,...

Main Entry: Common

Function: Noun

Date: 14th century

1. plural: The common people
2. plural but singular in construction: A dining hall
3. plural but singular or plural in construction, often capitalized a): The political group or estate comprising the commoners, b): The parliamentary representatives of the commoners, c): House Of Commons.
4. The legal right of taking a profit in another's land in common with the owner or others
5. A piece of land subject to common use: as a): Undivided land used especially for pasture, b): a public open area in a municipality
   (Source: Webster on-line dictionary)

Commentary:

"There are various kinds of libraries that exist in the city of Delhi, some established and run by the national and city government bodies, and some that are the offerings of other nations' cultural largesse. In all these, only one offers relatively unfettered access – the American Centre Library. Many university students in Delhi are members of only this library, and for a lot of them the idea of 'freedom' and 'free America' have become synonymous with its existence and operation.

Yet the libraries that you do not enter are as formative as the ones you do. The problem lies not in the fact of you being given access to only one universe, but of being barred from many others. This arises not from a lack of resources but because these emerge from public policies which premise themselves on the continuation of gated knowledge communities.

This conclusion evokes a memory...

I was told by a friend of the ramblers in England - who go on long walks for the wonderful pleasure of taking in 'mountain, moor, heath and down' – that when they walk, they do so partly to keep public paths public. Many of these walking routes have emerged from being trod by countless people over countless years. By law, if they are not used by the public to walk on them, they will revert to private ownership."

(Source: Monica Narula, "Tales of the Commons Culture", in Mute Magazine, London July 2001.)

Commentary

"The American writer and policy strategist David Bollier however points out that the wider concept of the public domain should be differentiated from that of the commons. The public domain in his view implies a passive open space that can be shared by anyone and everyone, and thus belongs to everyone and no one at the same time. The public domain invites the problem of responsibility. Since there is no boundary implied, nor any kind of ownership, neither private nor collective, nobody feels responsible for the resources that reside in the public domain.

The concept of the commons on the contrary implies boundaries. The commons refers to a resource, to common land, to common means of production, knowledge or information, that is shared amongst the constituents of a more or less well-defined community. There is ownership
here, but the ownership is collective, rather than individual. Furthermore, the rules of how these common resources are shared, and amongst whom, are not necessarily fixed in intransmutable rules. In the case of a digital commons, the notion of the commons no longer refers only to a territory, i.e. to a geographically situated community, but can also refer to a group of people who share a common interest or set ideas, yet who may be distributed potentially world-wide. Here we see where the hybridity comes in: The commons is extended from a set of shared physical resources (common land) to an immaterial domain (ideas, knowledge, information), and secondly the commons is extended from something that is necessarily geographically situated (walking paths) to something that is shared across geographical divides, because it is electronically mediated via digital networks. But in all of these cases the commons are not entirely 'free'. There are rules and mechanism of access, and limitations on use that are defined by the shared values of the community sharing these resources."

(Source: Eric Kluitenberg, "Constructing the Digital Commons", 2003.

See also David Bollier's website: www.bollier.org

For a general introduction to key concepts of the commons see:

www.commonsdev.us/content.php?id=1467, May 10, 2008)

3 - WHO OWNS THE PUBLIC DOMAIN?

Everyone and no one. The public domain of information and communication should not be monopolised by the state nor by commercial corporations (7) or non-accountable NGOs.

4 - WHAT IS A NETWORK SOCIETY?

To answer this question we must first ask:

4.1 - What is an Information economy?

The information sector of an economy is that sector whose products consist principally of information goods.

Information goods are non-material goods. They are most easily distinguished by the fact that they can be stored in various media and when stored in electronic media, their cost of reproduction becomes negligibly low. Some examples of information goods include software, music, video, databases, books, machine designs, genetic information, and other copyrighted or patented goods. When the information sector of an economy becomes more dominant than either its industrial or ecology sector, then that economy has become an information economy.

(Source: Roberto Verzola, Cyberlords: The Rentier Class of the Information Sector Resources: www.tao.ca/earth/lk97/archive/0174.html)

4.2 - When is it Appropriate to Speak of an Information Society?

A society in which Information and Communication Technology has become the dominant technology, and whose economy is primarily an information economy, can be called an information society. Another commonly used term for this kind of society is "Post-Industrial Society".

Commentary:

The term "Information Society", according to a recent report of the European Commission's Information Society Project Office (ISPO), reflects "European concerns with the broader social and organisational changes which will flow from the information and communications revolution", as opposed to the more limited, technology based, term "information highways", which originates from the United States.

(Source: Information Society Project Office (ISPO), "Introduction to the information society the European way", 1995 This and other policy papers can be found at: www.ispo.cec.be/infosoc/ back.html)

4.3 - And What About the Network Society?

Sociologist Manuel Castells concludes in his book "The Rise of the Network Society": "...as a historical trend, dominant functions and processes in the information age are increasingly organised around networks. Networks constitute the new social morphology of our societies, and the diffusion of networking logic substantially modifies the operation and outcomes in processes of production, experience, power, and culture. While the networking form of social organisation has existed in other times and spaces, the new information technology paradigm provides the material basis for its pervasive expansion throughout the entire social structure."

(Source: Manuel Castells, "The Rise of the Network Society - The Information Age Vol.1", Blackwell Publishers, Malden (Mass.), 1996, p. 469)

5 - ARE THERE ANY TOOLS TO BUILD THE PUBLIC DOMAIN 2.0?

The strongest tool to build the public domain 2.0 is the network itself, the way in which people can be mobilised and organised around shared common interests, locally, translocally and internationally using networked media. A lot of people put enormous effort in the creation of software tools and systems that can empower emerging civic movements. The free software, open source and copyleft movements are important agents for these new civic movements.

5.1 - What is Free Software?

"Free software" is a matter of liberty, not price. To understand the concept, you should think of "free speech", not "free beer".

"Free software" refers to the users' freedom to run, copy, distribute, study, change and improve the software. More precisely, it refers to four kinds of freedom, for the users of the software:

• The freedom to run the program, for any purpose (freedom 0).

• The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.

• The freedom to redistribute copies so you can help your neighbor (freedom 2).

• The freedom to improve the program, and release your improvements to the public, so that the whole community benefits. (freedom 3). Access to the source code is a precondition for this. A program is free software if users have all of these freedoms."

(Source: Free Software Foundation: www.gnu.org/philosophy/free-sw.html)

5.2 - What is open Source?

The basic idea behind open source is very simple. When programmers on the internet can read, redistribute, and modify the source for a piece of software, it evolves. People improve it, people adapt it, people fix bugs. And this can happen at a speed that, if one is used to the slow pace of conventional software development, seems astonishing.

We in the open-source community have learned that this rapid evolutionary process produces better software than the traditional closed model, in which only a very few programmers can see source and everybody else must blindly use an opaque block of bits.

A complete definition of Open Source can be found at: www.opensource.org/osd.html

(Source: The Open Source Initiative (OSI) – www.opensource.org)
 

5.3 - What is Copyleft?

The simplest way to make a program free is to put it in the public domain, uncopyrighted. This allows people to share the program and their improvements, if they are so minded. But it also allows uncooperative people to convert the program into proprietary software. They can make changes, many or few, and distribute the result as a proprietary product. People who receive the program in that modified form do not have the freedom that the original author gave them; the middleman has stripped it away.

In the GNU project, our aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, we might have many users, but those users would not have freedom. So instead of putting GNU software in the public domain, we "copyleft" it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.

(Source: Free Software Foundation – www.gnu.org/copyleft/copyleft.html)

5.4 - What is Creative Commons?

Creative Commons is devoted to expanding the range of creative work available for others to build upon and share

"Creative Commons is a non-profit corporation founded on the notion that some people may not want to exercise all of the intellectual property rights the law affords them. We believe there is an unmet demand for an easy yet reliable way to tell the world "Some rights reserved" or even "No rights reserved". Many people have long since concluded that all-out copyright doesn't help them gain the exposure and widespread distribution they want. Many entrepreneurs and artists have come to prefer relying on innovative business models rather than full-fledged copyright to secure a return on their creative investment. Still others get fulfilment from contributing to and participating in an intellectual commons. For whatever reasons, it is clear that many citizens of the Internet want to share their work – and the power to reuse, modify, and distribute their work – with others on generous terms. Creative Commons intends to help people express this preference for sharing by offering the world a set of licenses on our Website, at no charge."

(Source: Creative Commons frequently asked questions)

5.5 - What is Science Commons?

"There are terabytes of research data being produced in laboratories around the world, but the best web search tools available can't help us make sense of it. Why? Because more stands between basic research and meaningful discovery than the problem of search.

Many scientists today work in relative isolation, left to follow blind alleys and duplicate existing research. Data is Balkanised – trapped behind firewalls, locked up by contracts or lost in databases that can't be accessed or integrated. Materials are hard to get – universities are overwhelmed with transfer requests that ought to be routine, while grant cycles pass and windows of opportunity close. It's not uncommon for research sponsors to invest hundreds of millions of dollars in critically important efforts like drug discovery, only to see them fail.

The consequences in many cases are no less than tragic. The time it takes to go from identifying a gene to developing a drug currently stands at 17 years – forever, for people suffering from disease.

Science Commons has three interlocking initiatives designed to accelerate the research cycle – the continuous production and reuse of knowledge that is at the heart of the scientific method. Together, they form the building blocks of a new collaborative infrastructure to make scientific discovery easier by design.

• Making scientific research "re-useful" – We help people and organizations open and mark their research and data sets for reuse.

• Enabling "one-click" access to research materials – We help streamline the materials-transfer process so researchers can easily replicate, verify and extend research. Learn more.

• Integrating fragmented information sources – We help researchers find, analyze and use data from disparate sources by marking and integrating the information with a common, computer-readable language."

(Source: "About Science Commons" – http://sciencecommons.org/about/, May 4, 2008)

5.6 - Why are Creative Commons, Free Software, open Source, and Copyleft Relevant for the Public Domain 2.0?

Copyright and intellectual property protection, though invented to protect the rights of authors, increasingly serve the interests of intermediaries, publishers, software and media conglomerates. The increasing tendencies towards integration and mega mergers in and across these sectors create anti-markets that stifle the development of new products and ideas, promote pricing that is unrelated to production costs and as a result high consumer prices, and finally make markets increasingly inaccessible for new players.

The network logic can work in two opposed directions, towards the winner-takes-all effect: because many people use a given product more people use it, i.e. monopolies emerge as a "natural" result. Or the fact that value of a network product rises because more people use it can promote systems of free distribution, shareware, and gift economies. This is a matter of choice, not necessity.

6 - WHAT IS CONVERGENCE?

"The term convergence eludes precise definition, but it is most commonly expressed as: The ability of different network platforms to carry essentially similar kinds of services, or the coming together of consumer devices such as the telephone, television and personal computer." (...) Traditionally, communications media were separate. Services were quite distinct – broadcasting, voice telephony and on-line computer services. They operated on different networks and used different "platforms": TV sets, telephones and computers. Each was regulated by different laws and different regulators, usually at national level. Nowadays digital technology allows a substantially higher capacity of traditional and new services to be transported over the same networks and to use integrated consumer devices for purposes such as telephony, television or personal computing.

Telecommunications, media and IT companies are using the flexibility of digital technologies to offer services outside their traditional business sectors, increasingly on an international or global scale.

(Source: Green Paper on the Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications for Regulation – Towards an Information Society Approach, European Commission, Brussels, 3 December 1997. This and other papers can be found at: www.ispo.cec.be/convergencegp/)

7 - WHAT MEANS "MARKET-DRIVEN"?

"Europe is shifting towards an information-based economy, where networks and network infrastructure play as significant role as did the rail networks in transforming the European economies in the last century.

For Europe to meet the challenges presented by this Information Society, it is vital to ensure that business, industry and Europe's citizen's can access modern, affordable and efficient communications infrastructures over which a rich and diverse range of traditional and new multi-media services will be offered.

This revolution has been recognised at the highest political level. In their conclusions on the Bangemann Group Report, the Heads of State and Government meeting in Corfu considered 'that the current unprecedented technological revolution in the area of the Information Society opens up vast possibilities for economic progress, employment and the quality of life'. These changes are being driven by technology and by market forces. New global and regional partnerships are being formed to enable business and ordinary citizens to benefit from the opportunities offered by the convergence of broadcasting, telecommunications and information technologies."

(Source: Green Paper on the liberalisation of telecommunications infrastructure and cable television networks, part II, European Commission, Brussels, January 25, 1995. This and other related policy documents can be found at: http://ec.europa.eu/information_society/index_en.htm)

Commentary:

As a result of the convergence of formerly separate media and (tele-) communications industries a gigantic fusion and merger process is haunting these industries. These mergers principally take two shapes: Firstly "Horizontal Integration": Companies within a certain business segment integrate to achieve a greater share in the world's media and communication markets. More interestingly there also is a strong movement towards "Vertical Integration", where mergers cut across various business segments; i.e. cable operators going into telephony, mergers of telecommunication companies and media content producers, software companies buying into film- and media-production companies.

Economists will always argue against vertical integration, putting production and distribution in one hand, which sets ideal conditions for the creation of what economist Fernand Braudel calls "anti-markets". Vertical integration has been an on-going process in the media and telecommunications industries. While it remains to be seen if such colossuses will turn out to be successful ventures, it is clear that the power issue, putting internet access, content provision, cable networks, TV and news stations, radio, magazines and print publishers under the helm of one single board of directors – and this on a historically unprecedented scale – is a direct threat to the freedom of information.

8 - WHO IS GOING TO PAY FOR THE PUBLIC DOMAIN?

Right now the user generally pays for the telecommunications services according to use; in other words the consumer pays. In many European countries public broadcasting services are, on the contrary, financed through the state-budget, often via a public broadcasting fee paid by viewers and listeners. Commercial broadcasting is financed through sponsorship and advertisement.

If the public domain in the digital media environment is viewed as a community service, an alternative financial model will have to be developed. This will require either a restructuring of the budget for public broadcasting services, or the institution of an "info-tax" on the commercial use of communication networks. Out of these revenues funds can be established, out of which community services that run over existing emerging networks can be financed. Also initiatives should be encouraged to develop micropayment systems (not using credit cards) with which users will be able to pay content producers directly.

Commentary:

At the Economies of the Commons conference in De Balie in Amsterdam, April 11 & 12, 2008, strategies for sustainability and possibilities for creative reuse of publicly accessible audiovisual collections on the internet were discussed in a broad international forum of national broadcast archivists, researchers, media producers, copyleft activists, open content providers, immaterial heritage resource developers, professional cultural institutions and individual producers, and people from the internet and ICT industry.

The paradoxical question here was "What can be the most successful business model for creating public access to these resources?".

A number of models seem to prevail: Offering access via targeted advertising and/or user profiling (widely disliked); sponsorship in exchange for public exposure; Donation schemes facilitated by on-line payment tools, robust public /government funding combined with taxation (the classic model but one that is disappearing quickly). The producers of the "Steal This Film" documentaries proposed a truly innovative idea: VODO – a DRM type tracking mechanism that identifies the originating source of a particular media document on-line to enable VOluntary Donations to the originator of the material (see also: www.stealthisfilm.com).

(Source: Research collection website/dossier Economies of the Commons conference – www.ecommons.eu)

Commentary:

The Netherlands Scientific Council for Government Policy (WRR) has come up with a surprising suggestion in a recent policy proposal for the future of the public broadcast system called "Focus on Functions – Challenges for a future-proof media policy". They identified among four possible models for government involvement in the sensitive domain of media production, the so-called "Production Fund Model". In this scenario the state provides the guarantees for an adequately diverse news provision, and the technical infrastructure for public media services in all existing and possible future media platforms. Organisations from the wider social and cultural field can apply to the production fund to receive funding for relevant public media production in any possible medium, form or modality.

The proposal shifts the focus of media policy away from specific media channels (TV, Radio, Print, Internet) towards media "functions", i.e public provision of information, pluralism of public opinion, diversity of content providers, support for commercially not viable media productions with high public value. Furthermore this proposal marks a shift away from professional media producers, towards socially rooted organisations, initiatives and representative bodies, NGOs and civil initiatives.

The Digital Commons would be paid for out of existing means for public broadcasting – the hierarchy between radio, television and internet in public media offering would be dissolved.

(Source: WRR (Wetenschappelijke Raad voor het Regeringsbeleid – "Focus op functies: uitdagingen voor een toekomstbestendig mediabeleid", February 17, 2005), www.wrr.nl/content.jsp?objectid=2799)
 

9 - DOES THE PUBLIC DOMAIN 1.0 STILL EXIST?

Like the public urban space, also the public media domain is threatened by privatisation and increased surveillance. These threats are now most pertinent for the internet. While for instance in Europe the proliferation of commercial communication in the mass-media is controlled by regulation, commercial exploitation is unrestricted, or even encouraged (6), in the case of the internet.

10 - WHY IS THE RIGHT TO COMMUNICATION NECESSARY?

Access to information and communication should be seen as fundamental democratic right for all citizens of the world, not as an asset or simply a consumer product.

Commentary:

"The People's Communication Charter (PCC) represents a citizens' demand for the protection of the quality of communication services and the provision of information. Communication services should be user-friendly, accessible and affordable and information should be reliable and pluralist. The eighteen articles of the People’s Communication Charter can be summed up with these five key themes:

1. Communication and Human Rights. Communication and information services should be guided by respect for fundamental human rights.
2. Public Domain. Communication resources (such as airwaves and outer space) belong to the "commons"; They are public domain and should not be appropriated by private parties.
3. Ownership. Communication and information services should not be monopolized by governments or business firms.
4. Empowerment. People are entitled to the protection of their cultural identity and to the development of their communicative skills.
5. Public accountability. Providers of communication and information services should accept public accountability for the quality of their performance."
   (Source: Introduction to the People's Communication Charter: www.pccharter.net)