OA and the digital public domain

Michael Carroll, The Digital Public Domain, Carrollogos, December 30, 2008.  Excerpt:

Whatever one thinks about the rest of the Google Book business, I think it’s important to focus on the digitization of public domain books by both Google and the Open Content Alliance and to use these efforts as the basis for conceiving of the Digital Public Domain as a more robust version of the traditional public domain.

Here’s the gist of the argument:

1. Copyright and the Encouragement of Learning.

…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….

2. The Digital Public Domain

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. I’ve argued more extensively about use relevance here.

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.

3. The Open Access Connection

…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….

4. The Role of Universities

…Mandates work. Requests do not….

This post is derived from my presentation at the Boston Library Consortium’s Universal Access Digital Library Summit in September with the aim of showing connections between book digitization projects and the open access movement.