Cocoa Genome Released... But Is It Really In The Public Domain?

Last week, a PR person working for Mars (makers of M&Ms and such) sent me an email about how scientists from Mars along with the USDA and IBM (among others) had sequenced the cacao genome and that "the results of the research will be made available to the public with permanent access," at the accurately named Cacao Genome Database. Sounded interesting, but it was a busy week, and I wasn't able to spend much time digging into it. I was intrigued, however, by the claim in the press release that the team had "released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain". It's so rare to hear of some big companies doing research and release it into the public domain, that it, alone, seemed newsworthy, and something I wanted to explore.

Thankfully, before I even got the chance to, I saw Glyn Moody point me to Glen Newton's analysis of the claims of public domain and open access for the data, only to discover it's not true. While they are making the data available, it's hardly public domain. You have to agree to a license that has some serious restrictions in it (and some contradictions). For example, it lists out the ways you can use it -- and leaves out commercial use. Real public domain doesn't care (and doesn't require a license).

Then there's this:

The User shall not transfer the information referred to in this agreement, or any copy of them, to a third party without obtaining written authorization from the Providers which will only be provided subject to the third party user entering into this same IAA.

I'm kind of wondering if this is just boilerplate that the lawyers threw into this not understanding what public domain means. But it seems pretty silly to (a) create a license for supposedly public domain data which (b) doesn't allow you to tell anyone about what's in the license!

There is a nice bit in the "license" where it says you can't use the data in a patent application, but one would hope that the data being in the public domain would exclude it from being used in a limited fashion elsewhere anyway (sans license agreement). Separately, someone in the comments notes that the original license agreement said that if you used the data, you couldn't publish any articles about your findings until some period in the future -- but that clause was later removed (though, it's unclear if those who signed in prior to the removal still need to live by that).

However, I do have a pretty serious question: is this data in the public domain? Last year, we pointed out how difficult it is to put something into the public domain. Here, we have a case where Mars, the main company behind the research, has put out a press release, which clearly states:

Today, Mars, Incorporated, the U.S. Department of Agriculture-Agricultural Research Service (USDA-ARS), and IBM released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain.

Thus, one could easily read that and believe these findings are public domain. But, then, when you go to the actual site, it claims all sorts of license restrictions. So, if someone goes and copies all the data and puts it on their own site, is that legal? It certainly looks like the company put the info into the public domain via the press release, and once something is in the public domain, you can't reverse that (well, unless you're the 10th Circuit appeals court). So, it certainly looks like someone could make the argument that the license Mars is trying to put on this data is meaningless. The company has already declared it in the public domain, and thus, no license applies. But, here's where the lack of any clear rules for how you officially make something public domain come into play. Would Mars claim that the press release "misrepresented" the company's position?

I don't mean to come down too hard on Mars. It's actually quite nice that a company would do such research and try to make it "open" and try to prevent it from being locked up in patents. I really do commend such actions, and don't wish to negate that point. But, I think the public domain is a really important thing, and if a company wants to put content into the public domain, they should be clear about what's really in the public domain.

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