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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium 3 UNESCO’s Approach to Open-Access and Public-Domain Information Koïchiro Matsuura UNESCO, France The rapid evolution of knowledge societies continues to provide new means for achieving progress in all sectors of work and life through the increasing use of information and communication technologies (ICTs) such as computers and networks. While ICTs have greatly facilitated the movement and handling of data, the process of generating and validating information and knowledge remains essentially one of human creativity. While access to the information highways is still a real problem in many countries, questions of access to scientific and development data and information in the digital world, including questions of intellectual property rights, are attracting growing debate. Science and education are at the very center of debates on the challenges and opportunities of knowledge societies. We face a paradox, however. On the one hand the accelerating spread of the Internet and new opportunities for free or low-cost publishing are generating real benefits. On the other hand, the new economic and technological environment is raising concerns about the erosion of access to certain information and knowledge whose free sharing facilitated scientific research and education in past decades. Before proceeding to outline some aspects of the UNESCO approach to addressing these concerns, I would like to stress two fundamentals that govern our action. First, in UNESCO’s view the concept of “knowledge societies” is preferable to that of “the information society” because it better captures the complexity and dynamism of the changes taking place. The knowledge in question is important not only for economic growth but also for empowering and developing all parts of society. Thus, the role of new ICTs extends to human development more generally, and therefore to such matters as intellectual cooperation, lifelong learning, and basic human values and rights. Second, most developing countries have thus far been unable to take full advantage of the advances offered by new ICTs in terms of access to scientific and technological information and learning opportunities, at least relative to the situation in the industrialized countries—the “digital divide.” If knowledge societies capable of generating new knowledge in a cumulative, cooperative, and inclusive process are to be created, they should be based on shared principles, particularly equitable access to education and knowledge. National policies, supported by international frameworks, can be a tool to facilitate access for all to essential information. A key component of such frameworks and policies is the work of the United Nations system, under the leadership of the World Intellectual Property Organization (WIPO), to develop balanced and consistent international standards for copyright and neighboring rights as exemplified in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both adopted in 1996. UNESCO’s policy is to encourage and assist
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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium member states to promote access to information and knowledge for the progress of science and the diffusion of education, keeping in mind the necessity of rigorous conformity with international conventions on intellectual property. It is in this spirit that UNESCO has been working, following a directive of its General Conference in 1997, to elaborate a draft recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace.1 When submitted to the General Conference at its last session two years ago, no consensus was forthcoming. I therefore intervened personally by proposing that further structured consultation involving member states, other stakeholders, and experts be organized by the Secretariat with a view to generating greater consensus. This process of consensus building has moved forward successfully and the revised draft recommendation will be considered by the General Conference at its 32nd session, where it likely will be adopted. It will then be presented as a contribution of UNESCO to the first World Summit on the Information Society to be held in Geneva in December 2003. Two of the four main sections of the proposed draft recommendation—“development of public domain content” and “reaffirming the equitable balance between the interests of rights-holders and the public interest”—bear directly on the themes of this symposium. Without attempting to be comprehensive in the short time available, I will allude to some of the major points of the proposed draft recommendation in discussing the action that UNESCO is undertaking to promote practical solutions in these areas. Public-domain information is publicly accessible information, the use of which does not infringe any legal right or any obligation of confidentiality. It thus refers to the realm of all works or objects of related rights that can be exploited by everybody without any authorization. While many people associate the public domain mainly with classical and traditional literature, an equally important store of public-domain information for development, and undoubtedly most important for science, is public data and official information produced and voluntarily made available by governments or international organizations. Another paradox arises here. Public-domain information, which is free of copyright, is often not sufficiently well known to potential contributors and users, and in some countries there are growing restrictions on the availability and use of public information and data. Such restrictions arise, for example, when information and data that are in the public domain become privatized or commercialized through a process of re-packaging. In fact, the electronic public domain forms an international virtual public library that is vast and growing. This electronic public domain, furthermore, is both a world heritage and an invaluable support for productive commercial- and creative-sector activities in developing and industrialized countries. All would gain if governments and other public service organizations would identify and digitize their rich and diverse information stocks and make them available through the Internet. Thus, the UNESCO draft recommendation encourages member states to “recognize and enact the right of universal online access to public and government-held records” and to “identify and promote repositories of information and knowledge in the public domain and make them available to all.” UNESCO is encouraging this process in international forums and also in its advice to member states, notably through the preparation of “Policy Guidelines for the Development and Promotion of Public Domain Information.”2 OPEN-ACCESS AND VOLUNTARY AUTHORIZATIONS The public-domain principle can be extended conceptually by the assimilation of open-access information made freely available by its rights holders without cost. One well-known example of open access is the open-source software license by which computer programs are distributed free of charge by their authors for exploitation and cooperative development. Another is the vast amount of documentation produced and made available free of charge by the United Nations and its specialized agencies. Yet another is the movement of educational institutions around the world to provide their educational resources on the Internet free of charge for noncommercial usage, 1 See http://portal.unesco.org/es/ev.php@URL_ID=1276&URL_DO=DO_TOPIC&URL_SECTION=201.html. 2 See http://unesdoc.unesco.org/images/0012/001297/129725e.pdf.
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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium typified by the OpenCourseWare project of the Massachusetts Institute of Technology. The UNESCO draft recommendation urges member states and international organizations to encourage open-access solutions, and UNESCO itself is strongly committed to promoting information sharing in education, the sciences, and culture, and to disseminating information and software for development under open-access conditions. The question of access to commercially published information, which is of great importance to science, is a different one. It is to be noted that many publishers are interested in providing their works electronically under preferential conditions for science and education, particularly to users in developing countries, provided their copyright is strictly respected. Numerous international programs are now showing that affordable access to commercial publications in developing countries is possible: notably the Health InterNetwork Access to Research Initiative of the World Health Organization; the Pharmaceutical Education and Research Institute initiative of the International Network for the Availability of Scientific Publications, created by ICSU and UNESCO in 1991; the electronic-Journals Delivery System of the Abdus Salam International Centre for Theoretical Physics in Trieste, Italy; and the more recent, ambitious initiative of the revived Alexandria Library, from its beginning a UNESCO project, to make virtually all of the world’s books available through the Internet. UNESCO is looking carefully at ways to promote this type of initiative, for example, through model frameworks of voluntary permissions by which publishers and other rights holders could assign specific rights to users in developing countries, either definitively or on a limited time basis. Another quite distinct matter concerns provisions for a fair balance of interests in the use of copyrighted works in the digital environment. This refers to the limitations and exceptions to copyright and related rights protection that are authorized in national legislation—as required in the two aforementioned WIPO treaties—provided that they are applied only in certain special cases that do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of rights holders. Such provisions for equitable use in the public interest, which vary from country to country and are sometimes called “fair use,” “fair dealing,” or “limitations and exceptions authorized by the law” in specific legal systems, typically provide for exceptional free reproduction of copyrighted information for such uses as education, research, library services, journalism, and access for disabled persons. These equitable use provisions, which in the predigital world made possible the public library, are potentially of even greater importance in the digital world. However, they also present greater risks to the legitimate interests of rights holders given the ease with which digital information can be redistributed once released. UNESCO recognizes the importance of equitable use provisions in national policies in education, the sciences, and culture, particularly for the developing countries. We also recognize the importance of a fair balance between the interests of rights holders and those of users when cultural works and performances are exploited in the digital environment in the fields of teaching, scientific research, libraries, dissemination of information, and the needs of the visually impaired. In this regard UNESCO, in close consultation with the concerned user and rights-holder communities, is carrying out an extensive study aimed at comparing the relevant provisions in existing national legislation with actual needs. Later on, a consensus-building process will be proposed regarding how best to address in practice any identified gaps, paying full respect to relevant provisions in WIPO and World Trade Organization treaties and without undermining copyright protection.
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