[A2k] The Public Domain Why WIPO should care

[Uhlir, Paul]

Those of you on this list may be interested to refer to two recent works de=
aling with the value of info in the public domain, one published by UNESCO =
entitled Policy Guidelines on the Development and Promotion of Governmental=
 Public Domain Information, at http://portal.unesco.org/ci/en/ev.php-URL_ID=
=3D15863&URL_DO=3DDO_TOPIC&URL_SECTION=3D201.html, and the other by the US =
National Academy of Sciences on the Role of Scientific and Technical Data a=
nd Information in the Public Domain, at
http://books.nap.edu/catalog/10785.html#toc. Both documents make strong eco=
nomic, social, and other arguments about why public domain status is import=
ant, and both documents are freely available through these links. Questions=
 or comments welcome.

Paul


-----Original Message-----
From: a2k-admin@lists.essential.org [mailto:a2k-admin@lists.essential.org] =
On Behalf Of Teresa Hackett (eIFL)
Sent: Thursday, February 22, 2007 2:09 PM
To: A2K list
Subject: [A2k] The Public Domain Why WIPO should care

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

Teresa
-----

International Federation of Library Associations (IFLA) Library Copyright A=
lliance (LCA) Electronic Information for Libraries (eIFL)

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

The Public Domain
Why WIPO should care

"A rich public domain and fair access to copyright protected material enhan=
ces creativity and the production of new works. It is often assumed that ec=
onomic growth benefits from ever stronger intellectual property rights whil=
e some concession must be made to copyright exceptions for purely social re=
asons. 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 ac=
tually hurt economic growth." IFLA Committee on Copyright and other Legal M=
atters

What is the Public Domain?

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

These works are crucial in preserving our history, scientific knowledge, te=
chnology and inventions, and cultural heritage for present and future gener=
ations.  Access to the public domain fosters learning, innovation and creat=
ion 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 al=
l over the world are working to save - including through digitisation - old=
er, and often endangered, materials that are in the public domain.

Public domain works may be used without expending resources and cost in tra=
cing rightholders to obtain permission or buying licences. It is a lot easi=
er therefore

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

In February 2007 Dr Kamil Idris, WIPO Director-General, pledged WIPO's supp=
ort in the establishment by Belarus of an electronic library "to ensure pro=
tection of the country's scientific and artistic heritage."
Without the availability of public domain works to form the core of this on=
line library, this wonderful project will be stalled at the starting post s=
ince considerable time and resources will be required to identify, locate a=
nd obtain permission for rightsholders of copyright works before they can b=
e included. A number of works are furthermore likely to be orphaned which w=
ill exacerbate these problems. There are likely to be significant gaps in t=
he record of Belarus' 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 discove=
ry for creators. Works in the public domain are not subject to any restrict=
ions and may be freely used without permission for commercial and non-comme=
rcial purposes. It is important for access to knowledge and must be accessi=
ble for the benefit of creators, inventors, universities and research centr=
es.

The Public Domain encourages creativity

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

*=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, m=
erchandising and 'The Vedic Experience' theme park based on the
  Maha-bha-rata, one of ancient India's two major Sanskrit epics.

*=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.  Recordin=
gs of performances acquire new rights which bring revenue to musicians and =
producers. For example browse the Berlin Philharmonic Orchestra's catalogue=
 at http://www.berliner-philharmoniker.de/en/home/

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



*=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 tex=
t for students of Russian literature around the world. His complete works a=
re also available as recorded books. All his major novels have been transla=
ted and dramatised as successful television or feature films and have been =
performed on stage in several countries.

Why is the Public Domain in WIPO's remit?

*=09WIPO sets norms.

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

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

*=09The WIPO Secretariat already acknowledges this in the statement in
Annex A, Cluster B Proposal 17 Column (iii) of Ambassador Manalo's 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 wi=
thin the intellectual property structure. Protecting the public domain does=
 not imply legal protection but a general protection against ever encroachi=
ng IP rights created by the current trend for ever upward harmonisation of =
the terms and scope of patent, trademark, copyright, moral and related righ=
ts.

Why is the Public Domain under threat?

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

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

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

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

Content in the public domain is shrinking because of these extended terms o=
f protection, resulting in less content for creators to build upon and less=
 content for the benefit of society. Pioneering projects such as that of Ed=
uvision, providing digital learning materials to the poorest children in Ke=
nya, suffer as a result because they must rely on older out-of-copyright an=
d 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 ter=
ms 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 bu=
t important to researchers, historians, architects and other specialists is=
 being disproportionately affected.

Technological Protection Measures (TPMs)

*=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.

*=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 platform=
s, rendering the product orphaned.

*=09TPMs do not expire when the term of copyright protection expires, thus
they lock up the content in perpetuity and digital content in the public do=
main becomes inaccessible to future generations.  The result will be damagi=
ng gaps in the cultural and scientific record.

*=09Public domain content which is digitised and repackaged within
commercial materials becomes subject to contract. In most countries licence=
s and contracts are allowed to override copyright exceptions and limitation=
s so if such content is prevented by contractual terms from being re-digiti=
sed 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 t=
he licence terms.

*=09The world's research libraries need to keep digital works in
perpetuity and be able to transfer them to other formats and platforms in o=
rder to preserve them for the public domain, so they can make the content f=
ully accessible and usable once all the rights have expired.
The total protection of TPMs introduced by the WCT is having serious and de=
trimental effects on the preservation of our cultural and scientific herita=
ge in digital form. Great research libraries such as the British Library ha=
ve expressed their grave concern on the future implications and have public=
ly called on policy makers to find a solution.
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