A review of the history of the term “public domain” shows that it has traditionally been associated with public land and has never had a universally accepted meaning in the context of information. Indeed, there is little in official public documents or even in the scholarly literature that deals definitively with this subject. Most legal scholars would define public domain information by what it is not; that is, any information that is not proprietary, the yin to the proprietary yang. But such a definition is insufficient, for it does not adequately characterize or describe what public domain information in fact is, and provides no basis on which to evaluate its positive role and its value to knowledge societies, especially in the context of economic and social development.
The UNESCO Recommendation on Promotion and Use of Multilingualism and Universal Access to Cyberspace provides the following definition: “Public domain information refers to publicly accessible information, the use of which does not infringe any legal right, or any obligation of confidentiality. It thus refers on the one hand to the realm of all works or objects of related rights, which can be exploited by everybody without any authorization, for instance because protection is not granted under national or international law, or because of the expiration of the term of protection. It refers on the other hand to public data and official information Produced and voluntarily made available by governments or international organizations.”
Under this definition, information in the public domain covers two distinct notions:
On the one hand, “public domain information” can be defined as what is left outside the scope of any form of statutory protection including intellectual property rights, the protection of national security or public order, privacy laws and obligations of confidentiality.
On the other hand, “public domain information” also refers to information of an intrinsically public nature; that is, certain types of information that are produced by public authorities (“government” in the broad sense) in the course of their duties, and that are seen as a public good. This “governmental public domain information” at the national and sub- national levels, to which can be assimilated some public domain information produced by public international organizations, is not, in principle, subject to appropriation.
Source: Policy guidelines for the development and promotion of governmental public domain information – UNESCO Digital Library. (n.d.). Retrieved July 10, 2020, from https://unesdoc.unesco.org/ark:/48223/pf0000137363