[A2k] WIPO CDIP/10 - November 2012 - COMMUNIA Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment

melanie dulong melanie.ddr at gmail.com
Fri Nov 16 08:58:33 PST 2012

CDIP supports the undertaking of a Comparative Study on Copyright
COMMUNIA did not get the opportunity to present its statement during
the session, but the written statement will be taken into account in
the report.


COMMUNIA International Association on the Public Domain

WIPO CDIP/10 - Geneva, November 12 to 16, 2012

Comments on the Terms of Reference for a Comparative Study on
Copyright Relinquishment

COMMUNIA International Association on the Public Domain welcomes the
document produced by the WIPO Secretariat in preparation for the tenth
session of the Committee on Development and Intellectual Property
(CDIP) titled Terms of Reference for a Comparative Study on Copyright
Relinquishment (CDIP/10/14).

We believe that this document is an encouraging sign for copyright
international law-making to commit itself to considering crucial
aspects of access to culture and knowledge in recognising the
increasing importance of the Public Domain, on the basis of the WIPO
Development Agenda Recommendation #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”.

A comparative study on the issue of copyright relinquishment will be
very useful in order to assess the possibilities offered by voluntary
contributions to the Public Domain. Beyond a legal academic study,
concrete solutions are needed. We believe however that the language of
the Terms of Reference (ToR) could be improved: using a precise
vocabulary will ensure a positive mindset for the success of such a

Instead of characterizing the Public Domain as  “relinquishment” of
rights, it would be preferable to use the term “dedication” to the
Public Domain. Indeed, “dedication” to the Public Domain is a more
positive expression than voluntary “relinquishment” of rights, similar
to how a half-full rather than a half-empty glass reflects the
positive value of contributing to a common pool of works that are
accessible and reusable for all. Moreover, the reference made in the
study by Professor Dusollier (Scoping Study on the Public Domain,
CDIP/7/INF/2) about the “voluntary Public Domain” is cited by the ToR

The use of the term “cultural heritage” has been mentioned as
problematic for some delegations and observers as it would create
confusion. This concern should be addressed. The target of the
study--copyright relinquishment (or dedication to the Public Domain)
should be focused primarily on works and subject matters that are or
were covered by copyright, neighbouring rights or sui generis related
rights. The scope of the study does not and should not pertain to
traditional knowledge, traditional cultural expressions and folklore.

On the text of the ToR itself:

- On section II 1. and the objectives of the study

It would be useful to study not only the possible problems and
complexities, but also discuss possible solutions. These ideas for
solutions should be envisaged from the start, instead of waiting for
conclusions in a third stage. Also, we need to identify what would be
required to ensure the enforceability of Public Domain dedication
tools. We hope that the study will not only raise relevant issues, but
will also be action-oriented and propose concrete means to overcome
identified problems and explain how dedication/relinquishment can be
enabled by applicable law. The objectives of the study should be clear
and work toward nimble, implementable solutions instead of waiting for
long, drawn out conclusions.

The study should target the relinquishment of copyright / dedication
to the Public Domain, as a purpose for a rich and accessible Public
Domain to be integrated into the copyright legal framework.

- On section II 2. and the inalienability of moral rights

The Public Domain status of a work does not conflict with moral rights.

Moral rights still apply to works that are already in the Public
Domain because copyright has expired at the regular end of the
copyright protection term. Voluntary waivers of rights by their owners
need not be addressed differently. If moral rights are respected upon
the expiration of the copyright term, they are similarly respected
when the rights holder voluntarily decides to dedicate his/her rights
before the end of copyright protection.

The Public Domain should not be considered as a contradiction to moral
rights. On the contrary, the act of dedicating a work to the Public
Domain should be fully considered as a way to exercise one’s moral
rights. This is why allowing rights holders to express their will in a
free and informed manner is important.

- On last paragraphs, point 2

The definition of the term “material”, “including creative industries,
the online environment, with reference to collaborative creativity and
user generated content, and in regard to materials prepared by
not-for-profit and public institutions”, is too generic. In our sense,
it would be more appropriate for the concerned “material” to encompass
“copyrighted works but also data, databases and compilations subject
to copyright-related protection, performances, phonograms and
protected broadcasts.”

This clarification should also be extended to the first part of the
legal study which should not only focus on copyright but also on other
applicable related rights.


COMMUNIA Association on the Public Domain is built on the eponymous
Thematic Network, funded by the European Commission from 2007 to 2011,
which issued the Public Domain Manifesto
(http://publicdomainmanifesto.org/manifesto). The mission of COMMUNIA
Association is to raise awareness in, educate about, advocate for,
offer expertise on and research about the Public Domain in the digital
age within society and with policy-makers, at the EU level and
COMMUNIA Association is a WIPO observer since October 2012.
More information about COMMUNIA activity and policy recommendations at
Contact:  info at communia-association.org - Avenue Washington, 40,
B-1050 Brussels, Belgium
Follow us: @Communia_eu

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