Protecting the Public Domain: WIPO Releases Study on Copyright and the Public Domain

Pauline Wong is the Assistant Director of IP Osgoode.

The WIPO Committee on Development and Intellectual Property (CDIP) has released a “Scoping Study on Copyright and Related Rights and the Public Domain”, prepared by Professor Séverine Dusollier of the University of Namur, Belgium.  The Study recognizes that many business models now thrive on the public domain, such as Google Books Search.  It seeks to explain the nature of the public domain and ultimately make recommendations for its protection.  Discussion of the Study will resume at the Committee meeting in Geneva around May 2-6, 2011.

The following description of the Study is adapted from its Introduction.  The Study remarks that the public domain is mainly considered as an endangered species, subject to an enclosure and commodification process.  There are many threats that the public domain has to face, such as the extension of the duration of copyright, the encroachments brought by technological protection measures and protection of databases.

Digital development has also favoured projects, whether for profit or not, grounded on public domain material, extracting value out of it to provide the public with cultural resources for free or at low cost. Many business models now thrive on public domain, such as Google Books Search, and public authorities work at promoting digitisation and public availability of their cultural heritage, such as the European digital library.

The Study first assesses the scope of the public domain, as defined by copyright laws, history and philosophy, before turning to the issue of its effectiveness and greater availability to the public and society at large. This leads to the formulation of some recommendations that, by viewing the public domain as material that should receive some positive status and protection, might help to support a robust public domain.

The Study does not deal with the question of limitations to intellectual property (as to the scope of the rights, the object of the protection, the adequate duration of the right, etc.). Such delineation is fundamentally a matter for policy that has to be decided by States, both at an international and national level. The Study is also limited to the public domain as resulting from copyright legal regimes and not by patent or trademark.

Discussion of the Study will resume at the Committee meeting in Geneva around May 2-6, 2011.