On 7 May 2010 the WIPO Secretariat published a paper entitled “WIPO Scoping Study on Copyright and Related Rights and the Public Domain” prepared by Professor Séverine Dusollier (Professor, University of Namur, Belgium). This study was produced as an output of the WIPO Committee on Development and Intellectual Property’s (CDIP) thematic project on intellectual property and the public domain which is predicated upon Recommendations 16 and 20 of the Development Agenda.
Professor Dusollier’s study can be found on the the following link: (http://www.wipo.int/ip-development/en/agenda/pdf/scoping_study_cr.pdf). Among her observations on fostering a robust public domain, Professor Dusollier notes that
[a] sound policy for the public domain would be first to help its identification and its inscription in a specific legal regime, in order to remove it from the garbage or fallow land of copyright protection where it mainly stands. It would require to give substance to the public domain, both in terms of identity and of legal status.
It should be recalled that Recommendation 16 of the Development Agenda states:
16. Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.
Recommendation 20 of the Development Agenda states:
20. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.
Dusollier proposed the following principles to undergird a robust public domain.
A need for certainty in identification of public domain material: In order for economic development, follow-on creation, educational or consumptive use to thrive on the ground of the public domain, an important step is to enable to identify the composition of the public domain in the most precise and certain way. Ascertaining the scope of the public domain will never be an exact science, neither is determining the scope of copyright. But, legal rules should be clarified or simplified and tools should be developed and provided to help with such identification.
A need for availability and sustainability of public domain material: theoretical belonging of a work to the public domain will not be very valuable if access thereto and use thereof is not effective. A policy for the public domain should enhance the availability of the public domain, the effectiveness of access to it, as well as its sustainability. As to the latter, it means that the public domain should be both available for re-use and exploitation, and that its content should be preserved and maintained for the benefit of future generations.
A principle of non-exclusivity guaranteed by the law should be applied to the public domain: the rule of free use of the public domain, in absence of copyright protection should be legally established and sustained by enforcing a prohibition against commodification or private recapture of elements of the public domain.
A principle of non-rivalry guaranteed by the law should be applied to the public domain: the absence of copyright protection should entail an effective collective use of public domain resources, which would also imply guaranteeing access to support and use of public domain material without discrimination.