Public domain

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NDA Anatomy

The OneNDA clause

1. What is Confidential Information?

1(a) Confidential Information means information that is disclosed:

(i) by a party to this Agreement (the Discloser) or on the Discloser’s behalf by its authorised representatives or its Affiliates,
(ii) to the other party to this Agreement (the Receiver), and
(iii) in connection with the Purpose.

1(b) Confidential Information does not include information that is:

(i) in the public domain not by breach of this Agreement,
(ii) known by the Receiver at the time of disclosure,
(iii) lawfully obtained by the Receiver from a third party other than through a breach of confidence,
(iv) independently developed by the Receiver, or
(v) expressly indicated by the Discloser as not confidential.

1(c) 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.
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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 |

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Public domain /ˈpʌblɪk dəʊˈmeɪn/ (n.)

WIthout wishing to rip off the Cambridge Dictionary — but since I found it on the internet, it is in the public domain,[1] 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 hailing from the law of copyright: information that is “in the public domain” is information 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.

Being open source, the OneNDA itself is “in the public domain” in this narrow way. But the information one may share under it is not. Yet, in its “carve out” from the scope of confidentiality, the first version excludes information that is “in the 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 out of copyright is excluded from the confidentiality obligation. But it really means to exclude information that is public!”

We remark at once that if one applies that technical, fussy reading, this is correct. Even if you don’t, the prose stylist in you might feel “in public” to be a neater expression, if that is what you mean. But we are where we are.

But those who come to a text must approach it in good faith, mindful of context, and with a practical attitude. It is face-slappingly obvious what is meant here. Copyright is a tool for exploiting the commercial value of information by making it, in a controlled way, public. An NDA is a device designed to prevent that.

If information is public, but not yet in the public domain, it is, Q.E.D., not confidential, and calling it “confidential” does not change that.

But, as we know, the eyrie overflows with nervous chickens. They fear they have undercooked their goose.

But have they? Let us work this logic out, taking “public domain” to have its technical meaning. Imagine the argument that might unfold should one fellow have passed to another, under protection of OneNDA, information that is in fact widely known, but is not yet out of copyright.

For example, a prospectus, composed not six months ago and at great cost by learned counsel; undoubtedly a work of a creative effort, if not style or imagination. This tract attracts automatic copyright protection.[2] Yet it has been published, for all the world to see — with that express intent, in fact — and is in no sense secret.

Thus, according to the narrow reading of “public domain”, under OneNDA, this prospectus would still be impressed with the obligation of confidence. The rest of the world might know it and share it but, having received it under this OneNDA, I may not.

A few observations.

Firstly, if we are going to be pedantic — and everyone else is, so why not —what the rest of the world knows is strictly beside the point. The rest of the world is not party to this contract. If I have received information in confidence, I must treat it that way, whatever anyone else knows. What does it matter to me that information you have told me is secret happens not to be? Should I be automatically entitled to shout from the rooftops all information you give me that is not secret, even if I have promised not to? It is hard to see why.

Secondly, if I should happen to disclose this information given to me in confidence, that happens not to be secret — perhaps someone else in my organisation, unaware of my confidentiality obligation, shared a copy obtained elsewhere[3] — then what is the discloser’s loss? What damages has she suffered? This goes not to the scope of the confidentiality obligation itself, but one’s damages should it be breached.

Thirdly, making the outlandish supposition that the discloser brings an action before court because I have passed on information that is, in any event, readily available on the internet, how will the court interpret “the public domain”? As a rule, judges are not wantonly perverse. They don't go out of their way to upset the plain intentions of the parties, just because they are clumsily articulated. To give any sense to the contract — which is about secrecy, not commercial exploitation, remember — courts will read “public domain” to mean “public”. Yes, it is a redundant, ungainly way of saying “public” but look, the canon of English commercial contracts are hardly a model of tight, elegant prose.

For if the complaint is unnecessary fussiness, then why stop with “domain”? Any exclusion of public information, when describing something confidential, is fussy. It goes without saying. “Confidential” means “not public”.

We resort, at last, to our good friend Voltaire and his observation “perfection is the enemy of good enough”. OneNDA is a community effort; its organisers did a magnificent job of marshalling literally hundreds of aspiring pedants to produce something lightweight and workable. Do not expect so much: it is miracle enough without being perfect. Look at this one as a beauty spot, that might fall aside when it comes to version 2.

See also


  2. Pedants: can we agree, for the sake of argument, that even if enforcement of copyright is not insisted upon, its waiver was not so definitive as to put it “in the public domain”?
  3. “Having obtained the information elsewhere” being another exception to to the confidence obligation in any case, of course.