Public domain: Difference between revisions

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.<ref>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”?</ref>  Yet it has been published, for all the world to see — with that express intent, in fact — and is in no sense secret.  

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<ref>“Having obtained the information elsewhere” being another exception to to the confidence obligation in any case, of course.</ref> — 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.