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The Public Domain Manifesto

Preamble

"Le livre, comme livre, appartient à l’auteur, mais comme pensée, il appartient—le mot n’est pas
trop vaste—au genre humain. Toutes les intelligences y ont droit. Si l’un des deux droits, le droit
de l’écrivain et le droit de l’esprit humain, devait être sacrifié, ce serait, certes, le droit de
l’écrivain, car l’intérêt public est notre préoccupation unique, et tous, je le déclare, doivent
passer avant nous." (Victor Hugo, Discours d’ouverture du Congrès littéraire international de 1878,
1878)

"Our markets, our democracy, our science, our traditions of free speech, and our art all depend more
heavily on a Public Domain of freely available material than they do on the informational material
that is covered by property rights. The Public Domain is not some gummy residue left behind when all
the good stuff has been covered by property law. The Public Domain is the place we  quarry the
building blocks of our culture. It is, in fact, the majority of our culture." (James Boyle, The
Public Domain, p.40f, 2008)

The public domain, as we understand it, is the wealth of information that is free from the barriers
to access or reuse usually associated with copyright protection, either because it is free from any
copyright protection or because the right holders have decided to remove these barriers. It is the
basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw
material from which new knowledge is derived and new cultural works are created. The Public Domain
acts as a protective mechanism that ensures that this raw material is available at its cost of
reproduction - close to zero - and that all members of society can build upon it. Having a healthy
and thriving Public Domain is essential to the social and economic well-being of our societies. The
Public Domain plays a capital role in the fields of education, science, cultural heritage and public
sector information. A healthy and thriving Public Domain is one of the prerequisites for ensuring
that the principles of Article 27 (1) of the Universal Declaration of Human Rights ('Everyone has
the right freely to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits.') can be enjoyed by everyone around the world.

The digital networked information society has brought the issue of the Public Domain to the
foreground of copyright discussions. In order to preserve and strengthen the Public Domain we need a
robust and up-to-date understanding of the nature and role of this essential resource. This Public
Domain Manifesto defines the Public Domain and outlines the necessary principles and guidelines for
a healthy Public Domain at the beginning of the 21st century. The Public Domain is considered here
in its relation to copyright law, to the exclusion of other intellectual property rights (like
patents and trademarks), and where  copyright law is to be understood in its broadest sense to
include economic and moral rights under copyright and related rights (inclusive of neighboring
rights and database rights). In the remainder of this document copyright is therefore used as a
catch-all term for these rights. Moreover, the term 'works' includes all subject-matter protected by
copyright so defined, thus including databases, performances and recordings. Likewise, the term
'authors' includes photographers, producers, broadcasters, painters and performers.

The Public Domain in the 21st Century

The Public Domain as aspired to in this Manifesto is defined as cultural material that can be used
without restriction, absent copyright protection. In addition to works that are formally in the
public domain, there are also lots of valuable works that individuals have voluntarily shared under
generous terms creating a privately constructed commons that functions in many ways like the public
domain Moreover, individuals can also make use of many protected works through exceptions and
limitations to copyright, fair use and fair dealing. All of these sources that allow for increased
access to our  culture and heritage are important and all need to be actively maintained in order
for society to reap the full benefit of our shared knowledge and culture.

The Public Domain

The structural Public Domain lies at the core of the notion of the Public Domain and is comprised of
our shared knowledge, culture and resources that can be used without copyright restrictions by
virtue of current law. Specifically, the structural Public Domain is made up of two different
classes of material:

1. Works of authorship where the copyright protection has expired. Copyright is a temporary right
granted to authors. Once this temporary protection has come to its end, all legal restrictions cease
to exist, subject in some countries to the author's perpetual moral rights.

2. The essential commons of information that is not covered by copyright. Works that are not
protected by copyright because they fail the test of originality, or are excluded from protection
(such as data, facts, ideas, procedures, processes, systems, methods of operation, concepts,
principles, or discoveries, regardless of the form in which they are described, explained,
illustrated, or embodied in a work, as well as laws and judicial and administrative decisions).
This essential commons is too important for the functioning of our societies to be burdened with
legal restrictions of any nature even for a limited period.

The structural Public Domain is an historically grown balance to the rights of authors protected by
copyright and it is essential to the cultural memory and knowledge base of our societies. In the
second half of the 20th century all two elements identified here have been strained by the extension
of the term of copyright protection and the introduction of more copyright-like regimes of legal
protection.

Voluntary commons and user prerogatives

In addition to this structural core of the Public Domain, there are other essential sources that
enable individuals to freely interact with copyright protected works. These represent the "breathing
space" of our current culture and knowledge, ensuring that copyright protection does not interfere
with specific requirements of society and the voluntary choices of authors. While these sources
increase access to protected works, some of them make this access conditional on certain forms of
use or restrict access to certain classes of users:

1. Works that are voluntarily shared by their rights holders. Creators can remove use restrictions
from their works by either freely licensing them, or by using other legal tools to allow others to
use their works without restrictions, or by dedicating them to the Public Domain. For free licencing
definitions see the definition of free software http://www.gnu.org/philosophy/free-sw.html, the
definition of free cultural works http://freedomdefined.org/Definition, and the open knowledge
definition http://opendefinition.org/1.0/ for reference.

2. The user prerogatives created by exceptions and limitations to copyright, fair use and fair
dealing. These prerogatives  are an integral part of the Public Domain. They ensure that there is
sufficient access to our shared culture and knowledge, enabling the functioning of essential social
institutions and enabling social participation of individuals with special needs.

Taken together, the public domain, the voluntary sharing of works and exceptions and limitations to
copyright, fair use and fair dealing go a long way to ensure  that everyone has access to our shared
culture and knowledge in order to facilitate innovation and cultural participation for the benefit
of the entire society. It is therefore important that the Public Domain in both its incarnations is
actively maintained so that it can continue to fulfill this key role in this period of rapid
technological and social change.

General Principles

In a period of rapid technological and social change the Public Domain fulfills an essential role in
cultural participation and digital innovation, and therefore needs to be actively maintained. Active
maintenance of the Public Domain needs to take into account a number of general principles. The
following principles are essential to preserve a meaningful understanding of the Public Domain and
to ensure that the Public Domain continues to function in the technological environment of the
networked information society. With regard to the structural Public Domain these are as follows:

1. The Public Domain is the rule, copyright protection is the exception.  Since copyright protection
is granted only with respect to original forms of expression, the vast majority of data, information
and ideas produced worldwide at any given time belongs to the Public Domain. In addition to
information that is not eligible for protection, the Public Domain is enlarged every year by works
whose term of protection expires. The combined application of the requirements for protection and
the limited duration of the copyright protection contribute to the wealth of the Public Domain so as
to ensure access to our shared culture and knowledge.

2. Copyright protection should last only as long as necessary to achieve a reasonable compromise
between protecting and rewarding the author for his intellectual labour and safeguarding the public
interest in the dissemination of culture and knowledge. From neither the perspective of the author
nor the general public do any valid arguments exist (whether historical, economic, social or
otherwise) in support of an exceedingly long term of copyright protection. While the author should
be able to reap the fruits of his intellectual labour, the general public should not be deprived for
an overly long period of time of the benefits of freely using those works.

3. What is in the Public Domain must remain in the Public Domain. Exclusive control over Public
Domain works must not be reestablished by claiming exclusive rights in technical reproductions of
the works, or using technical protection measures to limit access to technical reproductions of such
works.

4. The lawful user of a digital copy of a Public Domain work should be free to (re-)use, copy and
modify such work. The Public Domain status of a work does not necessarily mean that it must be made
accessible to the public. The owners of physical works that are in the Public Domain are free to
restrict access to such works. However once access to a work has been granted then there ought not
be legal restrictions on the re-use, modification or reproduction of these works.

5. Contracts or technical protection measures that restrict access to and re-use of Public Domain
works must not be enforced. The Public Domain status of a work guarantees the right to re-use,
modify and reproduce. This also includes user prerogatives arising from exceptions and limitations,
fair use and fair dealing, ensuring that these cannot be limited by contractual or technological
means.

In addition, the following principles are at the core of the voluntary commons and user prerogatives
described above:

1. The voluntary relinquishment of copyright and sharing of protected works are legitimate exercises
of copyright exclusivity. Many authors entitled to copyright protection for their works do not wish
to exercise these rights to their full extent or wish to relinquish these rights altogether. Such
actions, provided that they are voluntary, are a legitimate exercise of copyright exclusivity and
must not be hindered by law, by statute or by other mechanisms including moral rights.

2. Exceptions and limitations to copyright, fair use and fair dealing need to be actively maintained
to ensure the effectiveness of the fundamental balance of copyright and the public interest. These
mechanisms create user prerogatives that constitute the breathing space within the current copyright
system. Given the rapid pace of change in both technology and society it is important that they
remain capable of ensuring the functioning of essential social institutions and the social
participation of individuals with special needs. Therefore, exceptions and limitations to copyright,
fair use and fair dealing should be construed as evolutionary in nature and constantly adapted to
account for the public interest.

In addition to these general principles, a number of issues relevant to the Public Domain must be
addressed immediately. The following recommendations are aimed at protecting the Public Domain and
ensuring that it can continue to function in a meaningful way. While these recommendations are
applicable across the spectrum of copyright, they are of particular relevance to education, cultural
heritage and scientific research.

General Recommendations

1. The term of copyright protection should be reduced. The excessive length of copyright protection
combined with an absence of formalities is highly detrimental to the accessibility of our shared
knowledge and culture. Moreover, it increases the occurrence of orphan works, works that are neither
under the control of their authors nor part of the Public Domain, and in either case cannot be used.
Thus, for new works the duration of copyright protection should be reduced to a more reasonable
term.

2. Any change to the scope of copyright protection (including any new definition of protectable
subject-matter or expansion of exclusive rights) needs to take into account the effects on the
Public Domain. Any change of the scope of copyright protection must not be applied retroactively to
works already subject to protection. Copyright is a time-limited exception to the Public Domain
status of our shared culture and knowledge. In the 20th century its scope has been significantly
extended, to accommodate the interests of a small class of rights holders at the expense of the
general public. As a result, most of our shared culture and knowledge is locked away behind
copyright and technical restrictions.  We must ensure that this situation will not be worsened at a
minimum, and be affirmatively improved in the future.

3. When material is deemed to fall in the structural Public Domain in its country of origin, the
material should be recognized as part of the structural Public Domain in all other countries of the
world. Where material in one country is not eligible for copyright protection because it falls under
a specific copyright exclusion, either because it does not meet the criterion of originality or
because the duration of its protection has lapsed, it should not be possible for anyone (including
the author) to invoke copyright protection on the same material in another country so as to withdraw
this material from the structural Public Domain.

4. Any false or misleading attempt to misappropriate Public Domain material must be legally
punished. In order to preserve the integrity of the Public Domain and protect users of Public Domain
material from inaccurate and deceitful representations, any false or misleading attempts to claim
exclusivity over Public Domain material must be declared unlawful.

5. No other intellectual property right must be used to reconstitute exclusivity over Public Domain
material. The Public Domain is integral to the internal balance of the copyright system. This
internal balance must not be manipulated by attempts to reconstitute or obtain exclusive control via
regulations that are external to copyright.

6. There must be a practical and effective path to make available 'orphan works' and published works
that are no longer commercially available (such as out-of-print works) for re-use by society. The
extension of the scope and duration of copyright and the prohibition of formalities for foreign
works have created a huge body of orphan works that are neither under the control of their authors
nor part of the Public Domain. Given that such works under current law do not benefit their authors
or society, these works need to be made available for productive re-use by society as a whole.

7. Cultural heritage institutions should take upon themselves a special role in the effective
labeling and preserving of Public Domain works. Not-for-profit cultural heritage organizations
have been entrusted with preservation of our shared knowledge and culture for centuries. As part of
this role they need to ensure that works in the Public Domain are available to all of society, by
labeling them, preserving them and making them freely available.

8. There must be no legal obstacles that prevent the voluntary sharing of works or the dedication of
works to the Public Domain. Both are legitimate exercises of exclusive rights granted by copyright
and both are critical to ensuring access to essential cultural goods and knowledge and to respecting
authors' wishes.

9. Personal non-commercial uses of protected works must generally be made possible, for which
alternative modes of remuneration for the author must be explored. While it is essential for the
self-development of each individual that he or she be able to make personal non-commercial uses of
works, it is just as essential that the position of the author be taken into consideration when
establishing new limitations and exceptions on copyright or revising old ones.