[A2k] WIPO CDIP/10 - November 2012 - COMMUNIA Comments on the Scenarios and Possible Options (...) of the Scoping Study on Copyright and Related Rights and the Public Domain

melanie dulong melanie.ddr at gmail.com
Fri Nov 16 09:00:27 PST 2012

CDIP adopted the document CDIP/9/INF/2 Rev. Scenarios and Possible
Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study
on Copyright and Related Rights and the Public Domain.
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 Scenarios and Possible Options Concerning
Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and
Related Rights and the Public Domain

COMMUNIA International International Association on the Public Domain
welcomes the document prepared by the WIPO Secretariat for the tenth
session of the Committee on Development and Intellectual Property
(CDIP) entitled Scenarios and Possible Options Concerning
Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and
Related Rights and the Public Domain (CDIP/9/INF/2 Rev.).

COMMUNIA would like to submit proposals to allow CDIP to build upon
the reflection suggested by the Scoping Study on the Public Domain
drafted by Professor Dusollier (CDIP/7/INF/2. Hereafter: the: the

First, COMMUNIA suggests that the Committee expand its consideration
to other recommendations from the Study, as all of them are extremely
valuable and need to be further examined, especially:

- Recommendation 1.e on “orphan works”;

- Recommendation 2.b encouraging legal deposit;

- Recommendation 2.c on the role of libraries.

These recommendations are complementary to recommendation 1f of the
Study aiming at identifying what should belong to the Public Domain.

Second, COMMUNIA urges WIPO delegations to select concrete actions
that could be developed by CDIP to provide assistance to Member
States. On the basis of the recommendations proposed by the Scoping
Study, we have the following comments:

- On recommendation 1f on the development of technical or
informational tools to identify the contents of the Public Domain:

Registration tools that enable the identification and location of
rights holders are of crucial importance in the context of mass
digitization and use of cultural resources, as shown shown by the
“orphan works” phenomenon. The development and promotion of these
tools need to be encouraged. WIPO has already started to investigate
the need for these mechanisms, as demonstrated by the Survey of
Private Copyright Documentation Systems and Practices, coordinated by
the NEXA Research Centre (available at
The development of such works and rights registries under the auspices
of WIPO (similar to the ongoing Global Repertoire Database initiative
for musical works) should be further considered. How these registries
shall be governed under a comprehensive policy providing for a balance
between private and public interests - and how they could be put in
place within the Berne Convention framework - require ongoing
dedicated discussions. These discussions should also address the role
of collecting societies in the administration of common information
technology infrastructures allowing such databases to be effective on
a trans-national level.

Useful Public Domain legal tools can leverage metadata to help promote
the discovery and identification of materials in the Public Domain.
For instance, the Creative Commons’ CC0 Public Domain Dedication
license and the Public Domain Mark allow identifying works with
machine-readable metadata of copyright licensing terms and related
information, so that content can be exposed to Internet search
engines. By leveraging this metadata, search engines can discern and
communicate to end users what is available for reuse, and under which

- On recommendation 2a and the role of cultural heritage institutions:

Following the input from the UNESCO International Conference on Memory
of the World in the Digital Age: Digitization and Preservation, which
took place in September 2012 in Vancouver, COMMUNIA suggests that CDIP
develop guidelines for memory institutions that curate works already
in the Public Domain in order to help them to release digital
reproductions of Public Domain works (as well as related notices and
metadata they are producing to accompany these works). Oftentimes,
museums and libraries add contractual restrictions (terms of use) to
access and use of Public Domain works they host on their websites.
These practices should end. According to  COMMUNIA policy
recommendation #5, “Digital reproductions of works that are in the
Public Domain must also belong to the Public Domain. The use of works
in the public domain should not be limited by any means, either legal
or technical.”

Third, COMMUNIA proposes to bring substantive legal proposals from the
Scoping Study to SCCR negotiations for the definition of a Public
Domain positive agenda. Having a clear definition of the Public Domain
in an international legal instrument and outlining the legal means to
prevent the re-enclosure of works in the Public Domain should be
considered as agenda items in future SCCR discussions.

In this purpose, COMMUNIA has several recommendations:

1. Defining a positive status for the Public Domain

The Public Domain deserves a positive recognition to better identify
works and uses which are available for creators and users to build
upon. It is time for copyright policymakers to consider the Public
Domain as something more than a mere “non IP protected” zone. Such an
evolution in describing the Public Domain would be consistent with the
history of “Intellectual Property”, which used to consider the Public
Domain as the rule and copyright as the exception, as a temporary and
limited monopoly of exploitation.

This positive status shall be reached by:

1.1. Integrating a definition of the Public Domain within copyright
law instruments.

1.2. Preserving the Public Domain from private appropriation.

Beyond a positive definition, the Public Domain should be preserved
from private appropriation and closures through legal, contractual or
technical barriers. Works that are in the Public Domain in analogue
form should stay in the Public Domain once they have been digitized.

2. Recognizing the validity of voluntary dedication to the Public Domain

Dedicating a work to the Public Domain should be considered as a
legitimate way to exercise one's exclusive right and as compatible
with moral rights. The legal enforceability of voluntary dedications
should be evenly recognized in all jurisdictions.

3. Facilitating the identification of the contents of the Public Domain

It is difficult to assess whether a work is in the Public Domain,
notably because of the complexity and the lack of harmonized copyright
rules pertaining to the duration of protection. There is a need for
certainty for users to clearly identify what is in the Public Domain.
Beyond registration and Rights Management Information tools, legal
security is required in order to assess the status of a work or any
subject-matter eligible for copyright or copyright-related protection.

This shall be implemented through:

3.1. Simplified and harmonized copyright duration and territoriality rules

Establishing a harmonized framework with regard to copyright scope and
duration would permit an easier identification of Public Domain works
across the world.

3.2. Rights Information Measures

The role of Rights Management Information (RMI) should be recognized
in the identification of the contents of the Public Domain.

3.3. Registration tools

The relevance of registration tools to help identify and locate rights
holders and Public Domain contents has to be acknowledged and further

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: @Co

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