Scoping Study on Copyright and Related Rights and the Public Domain

Abstract

This Study has been commissioned by the WIPO in the frame of its Development Agenda (particularly its recommendations 16 and 20). Its purpose is 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 that may be carried out by the World Intellectual Property Organization in that field. This paper maps the public domain 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 particularly underlines 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). Such uncertainty of the public domain also enables its encroachment by diverse legal mechanisms such as, depending on the legal regimes, the perpetual moral right, the domaine public payant, the European protection of so-called posthumous works, the 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.

The study also considers the tools developed to help the development of the public domain, such as open licensing schemes, public domain databases, metadata or calculators. The last part of the study is dedicated to outline some key elements of a positive regime for the public domain: 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 will be protected by two key principles: the non-exclusivity (ensuring its free use) and the non-rivalry (ensuring collective use and access). To that end, some policy recommendations are formulated.