[A2k] WIPO Scoping Study on Copyright and Related Rights and the Public Domain (released May 2010)
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 .
Professor Dusollier's study  can be found on the the following
). 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
"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
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
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
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
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
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."
Knowledge Ecology International (KEI)
thiru at keionline.org
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