[A2k] The Public Domain Why WIPO should care
Jeff Williams
jwkckid1@ix.netcom.com
Fri Feb 23 07:39:01 2007
Teresa and all,
Glad you did. I for one cannot reasonably understand why Colombia
of all nations are seemingly negative on a rich Public Domain!
Teresa Hackett (eIFL) wrote:
> 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 o=
r
> 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 for a publisher to produce special low-cost editions of a book =
in the
> public domain
> =95 a songwriter to parody a well-known ballad without fear of bein=
g sued
> =95 a teacher to distribute copies of a poem for students in their =
class, and
> =95 for a library to digitise a set of public domain photographs fo=
r their
> online local history exhibition
> =95 for 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 The Maha-bha-rata
> o The renowned Bollywood film producer, Bobby Bedi will create a tr=
ilogy
> of feature films , a television series, plus computer games, comic
> books, merchandising and =91The Vedic Experience=92 theme park based on t=
he
> Maha-bha-rata, one of ancient India=92s two major Sanskrit epics.
>
> =95 Mozart
> o Mozart 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 Snow White
> o Snow 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 Fyodor Dostoevsky
> o The 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 WIPO sets norms.
>
> =95 Copyright norms set by WIPO, in particular the scope and durati=
on of
> rights, impact on the public domain.
>
> =95 When private rights on content are increased, material in the p=
ublic
> domain decreases.
>
> =95 The 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 During the 1990=92s the world=92s two largest trading blocs, th=
e European
> 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 Recently 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 Furthermore copyright is also now within the realm of free trad=
e
> 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 TPMs acquired legal protection under the WCT. Yet they are adve=
rsely
> 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 TPMs 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 TPMs do not expire when the term of copyright protection expire=
s, thus
> 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 Public 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 The 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.
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
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