The following guest post is from Séverine Dusollier, who is a Professor in Law at the University of Namur and a member of the Open Knowledge Foundation’s Working Group on the Public Domain. She recently completed a Scoping Study on Copyright and Related Rights and the Public Domain commissioned as part of the WIPO Development Agenda (particularly its recommendations 16 and 20). We asked her to write about her findings…

The purpose of this study was mainly to assess the role, history, and justification of the public domain in copyright, to identify its main components and the obstacles that might interfere with the access and use of the copyright-related public domain, and finally to formulate recommendations in regard to future activities on the public domain in relation to copyright that may be carried out by the World Intellectual Property Organization.

The public domain has been described as including the following components:

  • The ontological public domain, composed of ideas, methods, rules, principles, style, facts, information, etc., and news of the day;
  • The subject-matter public domain, composed of non original works (and incidentally of foreign works not covered by applicable Treaties and of unfixed works in some countries);
  • The temporal public domain, composed of works whose term of protection has expired;
  • The policy public domain, composed of official texts (except for some countries)
  • The voluntary public domain, composed of works in which the author has relinquished her copyight.

Such mapping in copyright has particularly underlined the shifting boundaries of each part of the public domain due to the intervention of many legal intricacies and national oddities (e.g., the appropriation of raw data in protected databases, the impossibility to definitively determine the expiration of copyright, the legal uncertainty of the validity of copyright relinquishment).

The unclear boundaries of the public domain are one of the first concerns for its identification and availability. They also makes them ill-equipped to encounter challenges from other legal or technical mechanisms, that might interfere with the free access of use of the public domain. The study has namely surveyed some legal means of control that might subsist in public domain material, and erode its “publicness”, such as (depending in some cases of the countries): the perpetual moral right, the domaine public payant, the European protection of so-called posthumous works, property rights in the embodiment of the work, the technological measures of protection, the related rights, including the sui generis right in databases, the trademark protection. In many of such mechanisms, the study has however demonstrated that the interference was generally limited.

Beyond the public domain as legally delineated by the contours of the copyright protection, some tools have been developed to promote a better access to and free use of creative works, thereby encouraging the development of the public domain. Open licensing has played a great part: even though its subject matter is generally not within the public domain, such licensing model grants freedom of use under more flexible conditions approaching that of the public domain. Other tools have been developed to help identify, locate or collect public domain material, trying to make its functioning more efficient. Such tools come at a considerable cost, sometimes borne by individuals or non-governmental organisations, or by public institutions such as libraries or national registries. Any project to promote the public domain will have necessarily to address this cost or find ways to provide incentives for non-public actors to participate.

The last part of the study was dedicated to some propositions to protect and preserve the public domain from encroachment and erosion. Existing protection, either by case law or in some national laws, has been surveyed. But mainly, the following objectives for building a regime for the public domain has been put forward:

  • A need for certainty in identification of public domain material and ascertaining its scope;
  • A need for availability and sustainability of public domain material;
  • A need to legally guarantee that the public domain material will be protected by two key principles: the non-exclusivity (ensuring its free use) and the non-rivalry (ensuring an effective collective use and access)

To pursue these objectives, the study concludes by formulating some policy recommendations that could be undertaken at international level. Some examples of the recommendations are:

  • 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 and be recognised in countries other than the country of origin of the work.
  • 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.
  • the role of cultural heritage institutions, and mainly libraries, in the labelling, cataloguing, preserving and making available of public domain works, and the role of the legal deposit should be recognised and supported, particularly in the digital environment.
  • 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.
  • 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.

If you would like to discuss this study — or any of the issues it touches upon — you can join the OKF’s public domain discussion list.

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This post is by a guest poster. If you would like to write something for the Open Knowledge Foundation blog, please see the submissions page.

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