Can gateways be added to public information?

Question

Archive.org is a repository that has millions of papers, books and archives that are in the public domain, and are freely available. No registration whatsoever is needed.

Conversely, Academia.edu, is a for-profit company aiming to become a platform for academics. They have collected many works in the public domain, but to access any of them, it is necessary to register, or to "connect" using social media (by which you give consent to share your contacts). This is, in my opinion, nothing more than a facebook-type business model. In fact, their advertisment website says it plainly:

Advertise on the largest platform for Academics

Target 62 million registered users and over 25 million monthly impressions

My question is: is it legal to add a barrier ("free" in money terms, but not in information terms, which has value) to information already in the public domain?

Answer 1

You are framing it wrong.

It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere.

If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy.

Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there?

Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu¹. But that would be possible only for works not in the public domain.

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¹ To be decided by a judge on the basis of the wording of the licence and jurisdiction.

Answer 2

There nothing that bans you from adding some sort of gateway to any service, inclusive one providing curated access to information available elsewhere (which is the service that Academia.edu provide). If their business model had relied upon charging users for access,there would have been no problem.

However, their business model appear to be based upon profiling their registered users for the purpose of targeted advertising. They certainly collect a lot more data about their users than necessary for providing the service.

The GDPR is incredibly disruptive for this particular business model. Under the GDPR, you are only allowed to do this if you have freely given consent to process the personal data.

The GDPR (Recital 43) goes on to say this:

Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

So Academia.edu, by relying on consent, have to give me access to their service whether I consent to them having my personal data or not. This provides very little incentive for the data subject to give his or her consent.

So if they allow people in Europe you use their service (and currently they do) they need to rethink their business model or risk facing GDPR fines.

Answer 3

Looks pretty legal to me. It sounds like you may be working off a reasonable but not correct idea of what it means to be in the "public domain."

The public domain includes works that are no longer protected by copyright. That means that people are free to copy them without violating copyright law, but it does not mean that anyone in possession of a work in the public-domain must freely provide access to it whenever they want.

Try taking it out of the digital realm to see why this won't work:

The New York Public Library is a repository that has millions of papers, books and archives that are in the public domain, and are freely available. No registration whatsoever is needed.

Conversely, BarnesandNoble.com is a for-profit company. They have collected many works in the public domain, but to access any of them, it is necessary to pay money.

Probably you wouldn't argue that B&N has to just send you anything you want for free. You could even replace Academia.edu with "my house" and ask whether I should be required to let people in to peruse my collection of antiquarian works.

Academia.edu is operating in that same space. It is building a business off of public-domain works that it need not pay for, but may change for.