[A2k] WIPO Scoping Study on Copyright and Related Rights and the Public Domain (released May 2010)

Thiru Balasubramaniam thiru at keionline.org
Wed Sep 8 07:40:55 PDT 2010


WIPO Scoping Study on Copyright and Related Rights and the Public  
Domain (released May 2010)

Created 7 Sep 2010 - 6:05am
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 [1].

Professor Dusollier's study [2] can be found on the the following  
link: (http://www.wipo.int/ip-development/en/agenda/pdf/scoping_study_cr.pdf 
  [2]). 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  

"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  

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  

"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  

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  

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  
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  

- 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."


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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