[A2k] The Public Domain Why WIPO should care

[Teresa Hackett (eIFL)]

Colombia made a marathon, high speed 13 minute intervention on why the
public domain should not be part of WIPO's activities. We produced an
information sheet for delegates in response to discussion over the last
two days, using examples raised by delegates.

Teresa
-----

International Federation of Library Associations (IFLA)
Library Copyright Alliance (LCA)
Electronic Information for Libraries (eIFL)

Provisional Committee on Proposals Related to a WIPO Development Agenda
Third Session, Geneva, February 19-23, 2007

The Public Domain
Why WIPO should care

=93A rich public domain and fair access to copyright protected material
enhances creativity and the production of new works. It is often assumed
that economic growth benefits from ever stronger intellectual property
rights while some concession must be made to copyright exceptions for
purely social reasons. In fact this is a false dichotomy. Many
industries require access to copyright material for the purposes of
research and development, education, software or hardware
interoperability. A lack of reasonable access can actually hurt economic
growth.=94 IFLA Committee on Copyright and other Legal Matters

What is the Public Domain?

=93Public domain=94 means works that either never have been copyrighted or
that are no longer within the term of protection under the applicable
intellectual property laws.

These works are crucial in preserving our history, scientific knowledge,
technology and inventions, and cultural heritage for present and future
generations.  Access to the public domain fosters learning, innovation
and creation of new works.  Those works may themselves then be subject
to new rights, but that is a benefit not a burden of a rich public
domain.  Libraries all over the world are working to save =96 including
through digitisation =96 older, and often endangered, materials that are
in the public domain.

Public domain works may be used without expending resources and cost in
tracing rightholders to obtain permission or buying licences. It is a
lot easier therefore

=95=09for a publisher to produce special low-cost editions of a book in the
public domain
=95=09a songwriter to parody a well-known ballad without fear of being sued
=95=09a teacher to distribute copies of a poem for students in their class,=
 and
=95=09for a library to digitise a set of public domain photographs for thei=
r
online local history exhibition
=95=09for business and industry around the world to create new value-added
products from US government information, since it is all in the public
domain, including government funded research.

In February 2007 Dr Kamil Idris, WIPO Director-General, pledged WIPO=92s
support in the establishment by Belarus of an electronic library =93to
ensure protection of the country=92s scientific and artistic heritage.=94
Without the availability of public domain works to form the core of this
online library, this wonderful project will be stalled at the starting
post since considerable time and resources will be required to identify,
locate and obtain permission for rightsholders of copyright works before
they can be included. A number of works are furthermore likely to be
orphaned which will exacerbate these problems. There are likely to be
significant gaps in the record of Belarus=92 scientific and artistic
heritage.

Why is the Public Domain important?

The public domain is part of the common cultural and intellectual
heritage of humanity and is the major source of inspiration, imagination
and discovery for creators. Works in the public domain are not subject
to any restrictions and may be freely used without permission for
commercial and non-commercial purposes. It is important for access to
knowledge and must be accessible for the benefit of creators, inventors,
universities and research centres.

The Public Domain encourages creativity

Examples of uses of public domain works to create new works are

=95=09The Maha-bha-rata
o=09The renowned Bollywood film producer, Bobby Bedi will create a trilogy
of feature films , a television series, plus computer games, comic
books, merchandising and =91The Vedic Experience=92 theme park based on the
  Maha-bha-rata, one of ancient India=92s two major Sanskrit epics.

=95=09Mozart
o=09Mozart is among the most enduringly popular of European composers and
many of his works are part of the standard concert repertoire of
orchestras ranging from world class philharmonic to local youth
orchestras.  Recordings of performances acquire new rights which bring
revenue to musicians and producers. For example browse the Berlin
Philharmonic Orchestra=92s catalogue at
http://www.berliner-philharmoniker.de/en/home/

=95=09Snow White
o=09Snow White and the Seven Dwarfs (1937) produced by Walt Disney
Productions, was the first animated feature to become widely successful
within the English speaking world and was therefore intrinsic to the
company=92s success.



=95=09Fyodor Dostoevsky
o=09The Brothers Karamazov is one of the most acclaimed novels by the 19th
century Russian novelist Dostoevsky. It is now available online in full
text for students of Russian literature around the world. His complete
works are also available as recorded books. All his major novels have
been translated and dramatised as successful television or feature films
and have been performed on stage in several countries.

Why is the Public Domain in WIPO=92s remit?

=95=09WIPO sets norms.

=95=09Copyright norms set by WIPO, in particular the scope and duration of
rights, impact on the public domain.

=95=09When private rights on content are increased, material in the public
domain decreases.

=95=09The WIPO Secretariat already acknowledges this in the statement in
Annex A, Cluster B Proposal 17 Column (iii) of Ambassador Manalo=92s
working document for PCDA/3.

No conflict with IP rights

Safeguarding the public domain does not at all conflict with the
protection of intellectual property. A robust public domain enriches and
functions within the intellectual property structure. Protecting the
public domain does not imply legal protection but a general protection
against ever encroaching IP rights created by the current trend for ever
upward harmonisation of the terms and scope of patent, trademark,
copyright, moral and related rights.

Why is the Public Domain under threat?

Extending Terms of Copyright Protection
=95=09During the 1990=92s the world=92s two largest trading blocs, the Euro=
pean
Union (1993) and the United States (1998) extended the term of
protection for general copyright by a further 20 years to life plus 70
years.

=95=09Recently certain developing and transition countries have even
exceeded these long levels of protection e.g. Mexico (life + 100 years),
C=F4te d=92Ivoire (life + 99 years), and Ghana (life + 70 years).

=95=09Furthermore copyright is also now within the realm of free trade
agreements (FTAs), which, if with the EU or US, typically require the
partner country to extend the copyright term to at least match.

For developing and transition countries, where the issue of accessing
information is a key determinant in their development, term extensions
mean that information that traditionally belonged to everybody is
removed from collective ownership with grave consequences for education
and innovation. Furthermore, the extension of the term
disproportionately benefits rights owners and their estates in developed
nations, at the expense of users of information and potential new
creators in developing countries, reflecting the information flows from
North to South.

Content in the public domain is shrinking because of these extended
terms of protection, resulting in less content for creators to build
upon and less content for the benefit of society. Pioneering projects
such as that of Eduvision, providing digital learning materials to the
poorest children in Kenya, suffer as a result because they must rely on
older out-of-copyright and more out-of-date materials which impedes
academic research.

Longer terms of protection also exacerbate the problem of orphaned works
i.e. copyright works whose owners are difficult or impossible to trace,
thus making rights clearance difficult, and cumbersome and very
expensive in terms of library resources and budgets. This is
particularly significant when libraries need to get permission to
include works in digitisation projects. Academic, scholarly material or
less known works of no commercial value but important to researchers,
historians, architects and other specialists is being disproportionately
affected.

Technological Protection Measures (TPMs)

=95=09TPMs acquired legal protection under the WCT. Yet they are adversely
affecting access to the public domain. WIPO has a role to ensure that
TPMs do not harm access to content in the public domain.

=95=09TPMs last on average for three to five years. If the product is no
longer made, there will be no new TPM compatible with new operating
systems and no key available to allow libraries to migrate content to
new platforms, rendering the product orphaned.

=95=09TPMs do not expire when the term of copyright protection expires, thu=
s
they lock up the content in perpetuity and digital content in the public
domain becomes inaccessible to future generations.  The result will be
damaging gaps in the cultural and scientific record.

=95=09Public domain content which is digitised and repackaged within
commercial materials becomes subject to contract. In most countries
licences and contracts are allowed to override copyright exceptions and
limitations so if such content is prevented by contractual terms from
being re-digitised and made available in an open access repository such
as those that will be created through public programmes such as the
European Digital Library, it risks being locked up in perpetuity by TPMs
and the DRMS that enforce the licence terms.

=95=09The world=92s research libraries need to keep digital works in
perpetuity and be able to transfer them to other formats and platforms
in order to preserve them for the public domain, so they can make the
content fully accessible and usable once all the rights have expired.
The total protection of TPMs introduced by the WCT is having serious and
detrimental effects on the preservation of our cultural and scientific
heritage in digital form. Great research libraries such as the British
Library have expressed their grave concern on the future implications
and have publicly called on policy makers to find a solution.