‘Public Rights’ in Copyright: What Makes Up Australia's Public Domain?

Abstract

Previous studies have advocated a broader approach to the copyright public domain, but have rarely attempted to define this broader notion, or to enumerate what it would cover. Starting from previous attempts to define or categorise the copyright public domain, by Deazley, Dusollier and by Samuelson, this article proposes a definition of the copyright public domain.

We define the ‘public domain’, in relation to copyright, to be the ability of members of the public (including a significant class of the public, or intermediaries acting for their benefit) to use works, to do so on the same terms including costs (if any) as other members of the public, and where any licence is automatically available and on terms set by a neutral party. More briefly, we can describe the public domain in copyright as ‘The public’s ability to use works without seeking permission and on equal terms.’ The substance of the definition is therefore consistent with those of Deazley, Litman, Lessig, Boyle and others, but it is more precise. It is a definition which is neutral on the question of whether the public domain is comprised of various ‘rights’, or of something else.

We then examines how the definition can be used to justify a set of categories of ‘public rights’ that are sufficient to describe the copyright public domain in the Australian legal jurisdiction. We argue that there are fifteen such categories, which can be described briefly as:

Works failing minimum requirements Works impliedly excluded Works expressly excluded Constitutional exclusions Copyright has expired ‘Public domain dedications’ Public policy refusals Public interest exceptions Insubstantial parts Mere facts, ideas etc Uses outside exclusive rights Statutory exceptions Neutral collective licensing Neutral voluntary licensing De facto public domain of benign uses

We argue that these categories fit the proposed definition and, are congruent with our intuitions of what a broader and more modern notion of the public domain should contain. We explain these categories at a conceptual level, justifying them against the proposed definition, and in terms of the positive contributions they make to the idea of the public domain. A brief explanation is given of where each category fits in Australian copyright law, but without the detailed discussion of Australian law that a full explanation would require.

To what extent both the definitions, and the categories, will be useful in analysis of public domains other than Australia’s remains to be seen.

Keywords: copyright, public domain, commons, Australia