Dusollier (2010)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Dusollier (2010)
Title: Scoping Study on Copyright and Related Rights and the Public Domain
Author(s): Dusollier, S.
Year: 2010
Citation: Dusollier, S., WIPO (2010) CDIP/4/3/REV./STUDY/INF/1.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Angelopoulos (2012)
About the Data
Data Description: Comparative legal analysis of the copyright laws and public domain in 14 countries.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: Yes
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2010
Funder(s):
  • World Intellectual Property Organization

Abstract

Protection of the public domain comprises two steps, as laid down by the Development Agenda: first, identifying the contours of the public domain, thereby helping to assess its value and realm, and, second, considering and promoting the conservation and accessibility of the public domain.

The present study will follow the same direction as it will first assess 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 will lead 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, as advocated by the Development Agenda.

Our purpose is not to define what should be or not be in the public domain, nor to look at the causes of the shrinking of the public domain, or only incidentally. This study is situated beyond the debate as to what should be copyrighted or not, to what extent and for how long. It will not deal with the question of determination of those 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. As a consequence, the public domain that will be sketched here is not only what is left after the contours of copyright have been drawn, but is a repository of resources of its own.

Accordingly, the recommendations formulated at the end of this study will not focus on the scope of copyright and the way to curb it, but will rather try to develop strategies to make the public domain itself flourish and be made more available to the public. This study will also be limited to the public domain as resulting from copyright legal regimes and not by patent or trademark.

Part I of this study will give an evaluation of the role of the public domain in copyright, starting by a definition of what public domain is and what it should be distinguished from. The public domain in the history and justification of copyright will also be provided. Part II will identify the components of the public domain, notably based on an illustrative comparison of national legislation. It will also analyse other legislatively granted rights and/or interests that may modify and interfere with the level of accessibility and usability of the copyright-related public domain. Part III will provide a survey of non-legislative and private ordering initiatives, which provide for greater access, use, identification and location of the public domain and other creative material whose conditions of use are akin thereto. Part IV will sketch a possible future for the public domain, by developing the impetus it is gaining in legislative and judicial contexts, the key principles that could govern it for a more positive status, and finally by formulating recommendations in regard to future activities on the public domain in relation to copyright that may be carried out by the World Intellectual Property Organization.

Main Results of the Study

As far as identification of the public domain is concerned:

o The territoriality applying to the determination of the public domain should be further assessed. Recommendations are difficult to propose in that regard as substituting the law of the country of origin to the lex loci protectionis would only shift the uncertainty. Instead of having to deal with different laws when envisaging an exploitation of creative material in different jurisdictions, the user will have to determine the status of the resources used according to the law of countries of origin, even for an exploitation occurring in a single country.

o The difficulty of the rule of the comparison of terms applicable to the duration for protection, as provided by Article 7(8) of the Berne Convention, should at least be assessed. o The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.

o An exception or attenuation of the lex loci protectionis could be envisaged so as to mutually recognize the validity of a dedication to the public domain when valid in the country of origin of the work.

o The issue of orphan works should be dealt with at the international level or at least, a mutual recognition of the status of the orphan work applied in one country should be recognized by other Parties to the Berne Convention (except when identification or location of the author can be solved in this other country). WIPO should also help to set up networks of information about works in order to facilitate the identification of authors of orphan works. This would clarify the protected or unprotected status of orphan works.

o International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance.

o The 1996 WIPO Treaties could be modified to integrate, in the definition of “Rights Management Information”, any electronic information pertaining to public domain works.

- As far as the availability and sustainability of the public domain is concerned: o The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

o Legal deposit should be encouraged at national level, which might involve some financial and logistical help for developing countries. At international level, catalogues and cross-referencing of deposited works should be set up.

o The role of cultural heritage institutions, and mainly libraries, in the labelling, cataloguing, preserving and making available of public domain works, should be recognised and supported, particularly in the digital environment.

o Research should be carried out to identify means to promote the divulgation and exploitation of public domain material in terms of funding and incentives. The research could include the tool of the domaine public payant, as means to make commercial users of public domain works contribute, through a minimal sum, to the collecting and maintaining of public domain material carried out by public institutions. Where the moral right is perpetual, there should be ways of controlling possible abuses in exercising the divulgation or integrity right.

o Any extension of the scope or duration of copyright and related rights, both at international and national level, should take into account the empirical effects on the sustainability of the public domain.

- As far as the non-exclusivity and non-rivalry of the public domain is concerned: o Legal means should be found to prevent the recapture of exclusivity in works that have fallen into the public domain, whether through another intellectual property right (trademark or right in databases), property rights, other legal entitlements or technical protection, if such exclusivity is similar in scope or effect to that of copyright or is detrimental to non-rivalrous or concurrent uses of the public domain work.

o The 1996 WIPO Treaties should be amended to prohibit a technical impediment to reproduce, publicly communicate or making available a work that has fallen into the public domain. There is no legal basis for the enforcement of technical protection measures applied to the public domain, as public domain status should guarantee the right to make re-use, modification, reproduction and communication. It could also be clarified that only technological measures protecting copyrighted works that form a substantial part of the digital content to which they apply will be protected against circumvention. Technological measures mainly protecting public domain works, with an ancillary and minimal presence of copyrighted works, should not enjoy legal protection.

o As Berne countries are required to respect within their territory the intellectual property protection granted by other countries, they should recognize the public domain status defined by other countries and prevent privatization of what is in the public domain elsewhere.

Policy Implications as Stated By Author

The construction of a positive regime for the public domain, able to buttress the principles emphasized above would require both the adoption of normative rules in copyright laws and the setting up of material conditions to effectively enable access to, enjoyment and preservation of public domain resources. It is thus difficult to draw precise recommendations with a normative effect, as endeavours should be pervasive and might go beyond formal changes in intellectual property laws. Action might also be more appropriate at national level. The following main results do not propose to curb the scope or duration of copyright in any way, mainly as it is a matter for national public policy.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 14
Level of aggregation: Country
Period of material under study: 2010