The Public Domain at WIPO CDIP/9

In November, Communia made a statement to support the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) discussed at the WIPO Committee on Development and Intellectual Property (CDIP). Three recommendations had been selected by the member states for further work by the WIPO secretariat:

1.c. 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.

1.f. 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.

2.a. 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).

Document CDIP/9/INF/2 entitled Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain has thus been drafted by the secretariat and presented at this CDIP/9. Melanie Dulong de Rosnay on behalf of Communia made the following statement to support this Information Document Clarifying the Scope of Séverine Dusollier’s study:

“Dear Mister Chairman,

Congratulations on your election.
We thank the secretariat for preparing the document CDIP/9/INF/2 Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain, and support all of these recommendations.

Communia is the international association on the Public Domain. Our mission is to offer expertise and research about the public domain in the digital age.  Communia started as a network funded by the European Commission between 2007 and 2011 anddeveloped a set of policy recommendations to enrich and sustain the Public Domain. Several are in line with the recommendations proposed by Professor Séverine Dusollier and one is explicitly mentioned in the document prepared by the secretariat, proposing to re-establish some formalities: “in order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection”. Registration would serve several means, in particular, help to identify and locate Public Domain works, identify Right Holders and avoid orphan works.

On recommendation 1.f to develop informational and technical tools to identify content which is in the Public Domain, we think a good way of enhancing the interoperability of private registries, Public Domain calculators and public databases would be to recommend or even mandate the use of open standards. WIPO could certainly play a vanguard role by continuing coordinating initiatives and maybe at least partially host or list several of these systems.

Such technical or informational tools identifying content of the public domain shall be coordinated with  existing rights management structures such as collective rights management organizations. The creation of public registries at national levels listing works on which right-holders have willfully waived their rights and/or whose right-holders cannot be found or identified shall help improving legal certainty for users. The ability of right-holders to not fully exercise all of their rights shall be taken into account in the legal framework of the mandates between collecting societies and their members. This shall be part of the common information technology infrastructure that is likely to be proposed by the European Commission in its upcoming framework Directive on collective rights management.

We also recommend to consider other recommendations from the study, recommendations 1.e on orphan works, 2.b to encourage legal deposit and 2.c on the role of libraries because they are complementary to recommendation 1.f to identify content which is in the Public Domain.

Regarding recommendation 1.c to legitimate voluntary relinquishment as a legitimate exercise of copyright, we follow the recommendation of the secretariat to commission a study on relinquishment which will clarify the enforceability of tools such as CC0 dedication to the Public Domain in different jurisdictions. We would like to recall that actually, Public Domain is the rule and copyright is the exception. Moral rights regime shouldn’t be seen as a difficulty to circumvent, on the contrary, dedicating a work to the Public Domain, should be fully considered as a way to exercise one’s moral rights. Dedication to the Public Domain is a more positive expression than voluntary relinquishment of rights, reflecting the value of contributing to a common pool of reusable works.

Finally, we also welcome recommendation 2.a to enhance the availability of Public Domain works notably by cooperating with UNESCO and cultural heritage institutions. A good way to promote this cooperation is indeed to propose guidelines to museums. But a better way to protect the Public Domain would be to reinforce it statutorily.
Such a positive recognition could be achieved by implementing recommendations 3.a, b and c proposing to define legal means to prevent the recapture of exclusivity in works that are in the PD because the PD is at threat and deserves a positive legal definition to be protected from privatization.

We state that that “Digital reproductions of works that are in the Public Domain must also belong to the Public Domain. Use of works in the public domain should not be limited by any means, either legal or technical. Any false or misleading attempt to misappropriate Public Domain material must be declared unlawful. False or misleading attempts to claim exclusivity over Public Domain material must be sanctioned.”

The use of a Public Domain Mark such as the tool developed by CC or a stronger equivalent with metadata carrying the stamp of the affirmer, being a national library, the ministry of culture or these public and private registries we are talking about, would be extremely useful to both identify Public Domain works and prevent their misappropriation by adding another layer of rights.

We would like to clarify that we consider that Public Domain is related to copyright, and not to Traditional Knowledge, which is another part of IP, and we don’t understand why the promotion of the Public Domain and the protection of the Traditional Knowledge should be opposed, they are different matters and as such, our definition of the Public Domain does not target Traditional Knowledge,  collective rights of the community could be respected in the same way moral rights act for authors of copyrightable works. Traditional Knowledge should not be in the Public Domain just because it’s not copyrighted.

Finally, we think that “Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online.” Digitization project financed by private funding could also have a legal framework preventing to re-establish exclusivity. We would finally like to recall that not all private efforts are led by a certain wealthy search engine, but can also reflect the public interest. Another type of public-private partnership with experts from Wikipedia has shown extremely good results, for instance at the Chateau de Versailles, the British Museum, the Library of the Chilean National Congress, the Museo de Arte Popular in Mexico City or the Smithsonian Archives. For example, the publication on Wikimedia Commons of images of works from the former Dutch colonies curated by the Tropenmuseum in Amsterdam gave access to their own cultural heritage to Indonesians, because it was not available there. These experiences can be replicated and adapted to local context at extremely low cost, through the opening of collection to voluntary photographers, collaboration with curators to draft notices and metadatas, upload of Public Domain material in databases so they can be reused, or even translation of notices by students through instant messaging tools. Public participation to preservation is a powerful way to provide more visibility to collections in the respect of local communities. But these experiences can be led only if works are available under open access licenses or under Public Domain conditions.

It is our great pleasure to be accredited and to participate to this CDIP session where the Public Domain is at the heart of the agenda. Thank you.”

No consensus could be reached among member states on the necessity to lead further work on the Public Domain. US, EU, Switzerland and Norway are opposed to further examination of Dusollier’s recommendations on public domain, while Algeria, South Africa, Brazil, Chile, Venezuela, Pakistan, Creative Commons, Communia and KEI call for WIPO to continue its work on the recommendations.