Public domain

NDA Anatomy™ JC’s guide to non-standard confidentiality agreements. For the OneNDA, see the OneNDA Anatomy →Go uptown The OneNDA clause What is Confidential Information? Confidential Information means information that is disclosed: by a party to this Agreement (the Discloser) or on the Discloser’s behalf by its authorised representatives or its Affiliates, to the other party to this Agreement (the Receiver), its Affiliates or Permitted Receivers, and in connection with the Purpose. Affiliates means any: entity that directly or indirectly controls, is controlled by, is under common control with or is otherwise in the same group of entities as a party to this Agreement, or fund or limited partnership that is managed or advised, or whose general partner or manager is managed or advised, by the Receiver or its Affiliate or which the Receiver or its Affiliate controls. Permitted Receivers means the Receiver’s Affiliates and the Receiver’s or its Affiliates’ officers, employees, members, representatives, professional advisors, agents and subcontractors. Confidential Information does not include information that is: in the public domain not by breach of this Agreement, known by the Receiver or its Permitted Receivers at the time of disclosure, lawfully obtained by the Receiver or its Permitted Receivers from a third party other than through a breach of confidence, independently developed by the Receiver, or expressly indicated by the Discloser as not confidential. view template Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | OneNDA | Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | No licence | Non-solicitation | Permitted disclosees | Permitted disclosures | Procure compliance | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term of confidentiality | Index: Click ᐅ to expand: Confidentiality OneNDA Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Public domain
/ˈpʌblɪk dəʊˈmeɪn/ (n.)

WIthout wishing to rip off the Cambridge Dictionary — but hang it, it is in the public domain, at least according to its own definition:

“if information is in the public domain, it is available for everyone to see or know about”

That is the colloquial use: “public domain” is really just a pompous way of saying “public”.

But “public domain” also has a technical, narrower definition, that hails from the law of copyright: information that is “in the public domain” consists of all creative work that could be protected by intellectual property rights, but isn’t, whether because those rights have expired, been forfeited, waived, or for some other reason just don’t apply.

The OneNDA itself is “in the public domain” in this narrow way. But much of the information one may share under it is not. Yet, in its “carve out” from the scope of confidentiality, version one uses the expression “public domain” rather than simply “public”.

This is a cue for those who take pleasure from such things, to raise a technical objection.

“Aha! This is too narrow! This is wrong-headed! This means only information that is not protected by patent or copyright is excluded from the confidentiality obligation, when what one really means is information that is public!”

We remark at once that on a technical, fussy reading, this is correct. You might expect version two to correct this: however you look at it, “public” is a neater expression, if that is what you mean.

Indeed, “public domain” in its technical sense makes a nonsense, since a copyright has no practical value until information is public: if it is not, it is hard too see how anyone can copy it, whether they are allowed to or not. If the information is public, but not yet in the public domain, it is, QED, not confidential, and calling it confidential does not change that.

But, as we know, the eyrie overflows with nervous chickens. Let us work this logic out, and take “public domain” to have its technical meaning and imagine the dispute that might arise should I have passed to you, under protection of a OneNDA, a prospectus: being composed not six months ago and at great cost by my counsel, it is undoubtedly a work of a creative effort, if not great imagination, and it attracts automatic copyright protection. It has been published, for all the world to see — with that express intent, in fact —

See also

• Copyright and patent