[Ip-health] FromGeneva: WIPO enriched by in-depth discussions of the public domain

[Thiru Balasubramaniam]

http://www.keionline.org/index.php?option=3Dcom_jd-wp&Itemid=3D39&p=3D128

WIPO enriched by in-depth discussions of the public domain
July 14th, 2008 by Thiru Balasubramaniam

The penultimate day of the WIPO development committee held in-depth
discussions on recommendation 20 of the Development Agenda which states:

     To promote norm-setting activities related to IP that support a
robust public domain in WIPO=92s Member States, including the
possibility of preparing guidelines which could assist interested
Member States in identifying subject matters that have fallen into the
public domain within their respective jurisdictions.

The International Bureau information document on activities for
implementation of proposal 20(CDIP/1/3) states that WIPO will

     conduct a study on bad faith appropriation of distinctive signs
and possibilities to prevent such practices. IP rights in distinctive
signs, such as trademarks or geographical indications, confer
exclusive rights over those signs, provided that particular conditions
for protection are met. Problems can arise in situations where the
appropriation of such signs occurred in an abusive manner. Examples
for such practices are bad faith registration of trademarks
incorporating signs that are considered to be in the public domain,
such as descriptive terms, or the appropriation of signs that are part
of a common communal heritage or patrimony, such as sacred signs or
geographically descriptive signs. The study could research actual and
potential problems as well as mechanisms for the prevention of such
practices, and present conclusions.

     To initiate activities to promote deeper understanding of
problems in the field of copyright and related rights related to
identification of public domain material (e.g. orphan works, use of
rights management technologies, the role of search engines). To
support the development of a database containing the repertoire of
national copyright and related rights protectable works, including
those in the public domain.The activities could include a comparative
analysis of existing legislative approaches adopted in Member States,
and examination of areas where greater clarity and tools for
identifying public domain subject matter, including subject matter
placed in the public domain by its creators, would serve the public
interest. This could be the first step towards development of possible
guidelines.

     If requested by Member States, discussions in the SCP can focus
more sharply on topics related to the safeguarding of the public
domain. These may include the introduction of a worldwide definition
of prior art that would prevent encroachments on the public domain
(e.g. TK) or an adequate inventive step standard. Specific TK items
have recently been introduced in the IPC and in the PCT minimum
documentation. These activities will be continually updated and
monitored in the future.

     To create practical tools to ensure that public domain
traditional knowledge and genetic resources are not the subject of
illegitimate or inaccurately granted patents, including through the
development of practical guidelines and mechanisms to ensure that
traditional knowledge =96 once disclosed with the consent of its holders
=96 is fully taken into account by patent search and examination
authorities.

With respect to the public domain, Richard Owens (WIPO Secretariat)
noted that there is a fundamental question of definition that frames
the policy debate on this issue. The classical definition of the
public domain (in the copyright context) is =93what is not protected by
copyright, i.e. rights that have expired, works that have not been
deemed worthy of protection, and exceptions to copyright including
official laws and statutes.=94 Owens contrasted the classical definition
with a more vernacular approach to the public domain not rooted in
traditional copyright discourse but rather predication upon the notion
of =93access to content, irrespective of whether content is
copyrighted=94. Owens mentioned collaborative works and the progress in
information and communications (ICT) technology as part of this
vernacular discourse on the public domain. He raised two potential
studies WIPO could embark upon with respect to the public domain. The
first would be a comparative analysis of countries=92 legislation asking
the question, =93how do Member states define the public domain=94. The
second potential study would examine the how living creators use
existing copyright structures to put their works into the public domain.

Michael Shapiro (United States of America) reaffirmed the
Secretariat=92s description of the public domain by noting the
=93classical dividing line between protected and non-protected works=94 as
his delegation had =93heard from the dais=94. Shaprio reaffirmed the
public domain=92s import as a commons upon which creators drew
inspiration from. With respect to the comparative analysis of
legislation to clarify boundary between protected and unprotected,
Shapiro cautioned that precision was required in endeavoring to
delineate the contours of the public domain. Shapiro noted that
copyright is territorial and that WIPO=92s proposed public domain
database was ambitious; before embarking on this project, the United
States requested that the International Bureau produce a =93scoping=94
document detailing the purpose and the cost of the database. Shapiro
concluded his intervention by stating that digital technology provides
=93unprecedented access to works=94 providing the example of Project
Gutenberg which published 50 ebooks a week.

Peter Beyer (Switzerland) noted that Switzerland did not have a
copyright registry; therefore, he questioned whether having a public
domain database would be feasible and cost efficient.

Cristiano Berbert (Brazil) echoed Richard Owens=92 (WIPO) comment that
=93safeguarding the public domain is important=94. With respect to the
interface between the public domain, traditional knowledge and the
patent regime, Brazil expressed its concern with WIPO=92s suggestion for
a worldwide definition of prior art and inventive step; Brazil
requested the International Bureau that this be suppressed as patent
harmonization is to say the least controversial, as evidenced in the
failure of the Substantiative Patent Law Harmonization (SPLT) process.

Chile reaffirmed its commitment to deepening the public domain
discourse in the CDIP. In particular, Chile noted that in the CDIP
both the United States and Denmark were of the view that =93intellectual
property and the public domain were two sides of the same coin=94. Chile
welcomed the International Bureau=92s proposed studies on the public
domain landscape.

Richard Owens (WIPO) responded suggesting that one possible initial
approach =93is to see what is out there=94 using private and public
databases. He allayed the fears of France (speaking on behalf of the
European Communities and its Member States), Switzerland and the
United States by stating that WIPO would not =93create a worldwide
database without a lot more preparatory work and guidance from member
states=94. Specifically, the International Bureau suggested that the
Secretariat could =93study issues related copyright documentation
including works in the public domain, including private initiatives
and voluntary registration systems=94.

The United States riposted that =93this is not actionable yet; at this
point in time, we are all waiting for details before the International
Bureau=94 could implement this recommendation on the public domain.

Brazil provided a constructive comment calling upon the =93International
Bureau will consider the possibility of developing the issue into a
more grounded project in the next session=94.

The second session of the CDIP concluded its deliberations on the
public domain, as noted in the Summary by the Chair (Ambassador Trevor
Clarke, Barbados), that the

     Committee discussed activities for implementation of adopted
recommendations 20 [on the public domain], 22, and 23 in Cluster B,
[in the] list of 26, followed the same procedure as had been
established during the first session of the CDIP. Accordingly, the
Committee agreed that the proposed activities, as suitably modified
following discussions, would be sent to the Secretariat to assess the
human and financial resources requirements, and would be communicated
to the Member States before the third session of the CDIP.

In plain terms observers to the CDIP can expect the WIPO Secretariat
do a complete human and financial resources costing on recommendation
20 prior to the Committee=92s third session. It will be interesting to
see the price tag on promoting norm-setting activities related to IP
that support a robust public domain in WIPO=92s Member States,
=93including the possibility of preparing guidelines which could assist
interested Member States in identifying subject matters that have
fallen into the public domain within their respective jurisdictions=94.

This entry was posted on Monday, July 14th, 2008 at 11:34 am.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997