In 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/edocs/mdocs/mdocs/en/cdip_4/cdip_4_3_rev_study_inf_1.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.
Professor Dusollier submits the following recommendations in line with Development Agenda recommendations 16 and 20 which inter alia, call upon WIPO to “consider the preservation of the public domain within WIPO’s normative processes” and to “promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States”.
The construction of a positive regime for the public domain, able to buttress the principles emphasized above would require both the adoption of normative rules in copyright laws and the setting up of material conditions to effectively enable access to, enjoyment and preservation of public domain resources.
It is thus difficult to draw precise recommendations with a normative effect, as endeavours should be pervasive and might go beyond formal changes in intellectual property laws. Action might also be more appropriate at national level. The following recommendations do not propose to curb the scope or duration of copyright in any way, mainly as it is a matter for national public policy.
At international level, the following ideas might be pursued:-As far as identification of the public domain is concerned:
The territoriality applying to the determination of the public domain should be further assessed. Recommendations are difficult to propose in that regard as substituting the law of the country of origin to the lex loci protectionis would only shift the uncertainty. Instead of having to deal with different laws when envisaging an exploitation of creative material in different jurisdictions, the user will have to determine the status of the resources used according to the law of countries of origin, even for an exploitation occurring in a single country.
The difficulty of the rule of the comparison of terms applicable to the duration for protection, as provided by Article 7(8) of the Berne Convention, should at least be assessed.
The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.
An exception or attenuation of the lex loci protectionis could be envisaged so as to mutually recognize the validity of a dedication to the public domain when valid in the country of origin of the work.The issue of orphan works should be dealt with at the international level or at least, a mutual recognition of the status of the orphan work applied in one country should be recognized by other Parties to the Berne Convention (except when identification or location of the author can be solved in this other country). WIPO should also help to set up networks of information about works in order to facilitate the identification of authors of orphan works. This would clarify the protected or unprotected status of orphan works. International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance. The 1996 WIPO Treaties could be modified to integrate, in the definition of “Rights Management Information”, any electronic information pertaining to public domain works.
As far as the availability and sustainability of the public domain is concerned:The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).
Legal deposit should be encouraged at national level, which might involve some financial and logistical help for developing countries. At international level, catalogues and cross-referencing of deposited works should be set up.
The role of cultural heritage institutions, and mainly libraries, in the labelling, cataloguing, preserving and making available of public domain works, should be recognised and supported, particularly in the digital environment.
Research should be carried out to identify means to promote the divulgation and exploitation of public domain material in terms of funding and incentives. The research could include the tool of the domaine public payant, as means to make commercial users of public domain works contribute, through a minimal sum, to the collecting and maintaining of public domain material carried out by public institutions. Where the moral right is perpetual, there should be ways of controlling possible abuses in exercising the divulgation or integrity right.
Any extension of the scope or duration of copyright and related rights, both at international and national level, should take into account the empirical effects on the sustainability of the public domain.
– As far as the non-exclusivity and non-rivalry of the public domain is concerned:Legal means should be found to prevent the recapture of exclusivity in works that have fallen into the public domain, whether through another intellectual property right (trademark or right in databases), property rights, other legal entitlements or technical protection, if such exclusivity is similar in scope or effect to that of copyright or is detrimental to non-rivalrous or concurrent uses of the public domain work.
The 1996 WIPO Treaties should be amended to prohibit a technical impediment to reproduce, publicly communicate or making available a work that has fallen into the public domain. There is no legal basis for the enforcement of technical protection measures applied to the public domain, as public domain status should guarantee the right to make re-use, modification, reproduction and communication. It could also be clarified that only technological measures protecting copyrighted works that form a substantial part of the digital content to which they apply will be protected against circumvention. Technological measures mainly protecting public domain works, with an ancillary and minimal presence of copyrighted works, should not enjoy legal protection.
As Berne countries are required to respect within their territory the intellectual property protection granted by other countries, they should recognize the public domain status defined by other countries and prevent privatization of what is in the public domain elsewhere.