WIPO CDIP/10 – Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment

WIPO CDIP/10 – Geneva, November 12 to 16, 2012

This statement on the Terms of Reference for a Comparative Study on Copyright Relinquishment by the WIPO Secretariat (CDIP/10/14) is following Communia’s previous statements delivered at CDIP/8 and CDIP/9 supporting the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) and the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain by the Secretariat (document CDIP/9/INF/2).

Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment

COMMUNIA International Association on the Public Domain welcomes the document produced by the WIPO Secretariat in preparation for the tenth session of the Committee on Development and Intellectual Property (CDIP) titled Terms of Reference for a Comparative Study on Copyright Relinquishment (CDIP/10/14).

We believe that this document is an encouraging sign for copyright international law-making to commit itself to considering crucial aspects of access to culture and knowledge in recognising the increasing importance of the Public Domain, on the basis of the WIPO Development Agenda Recommendation #16: “Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.

A comparative study on the issue of copyright relinquishment will be very useful in order to assess the possibilities offered by voluntary contributions to the Public Domain. Beyond a legal academic study, concrete solutions are needed. We believe however that the language of the Terms of Reference (ToR) could be improved: using a precise vocabulary will ensure a positive mindset for the success of such a study.

Instead of characterizing the Public Domain as  “relinquishment” of rights, it would be preferable to use the term dedication” to the Public Domain. Indeed, “dedication” to the Public Domain is a more positive expression than voluntary “relinquishment” of rights, similar to how a half-full rather than a half-empty glass reflects the positive value of contributing to a common pool of works that are accessible and reusable for all. Moreover, the reference made in the study by Professor Dusollier (Scoping Study on the Public Domain, CDIP/7/INF/2) about the voluntary Public Domain is cited by the ToR themselves.

The use of the term “cultural heritage” has been mentioned as problematic for some delegations and observers as it would create confusion. This concern should be addressed. The target of the study–copyright relinquishment (or dedication to the Public Domain) should be focused primarily on works and subject matters that are or were covered by copyright, neighbouring rights or sui generis related rights. The scope of the study does not and should not pertain to traditional knowledge, traditional cultural expressions and folklore.

On the text of the ToR itself:

- On section II 1. and the objectives of the study

It would be useful to study not only the possible problems and complexities, but also discuss possible solutions. These ideas for solutions should be envisaged from the start, instead of waiting for conclusions in a third stage. Also, we need to identify what would be required to ensure the enforceability of Public Domain dedication tools. We hope that the study will not only raise relevant issues, but will also be action-oriented and propose concrete means to overcome identified problems and explain how dedication/relinquishment can be enabled by applicable law. The objectives of the study should be clear and work toward nimble, implementable solutions instead of waiting for long, drawn out conclusions.

The study should target the relinquishment of copyright / dedication to the Public Domain, as a purpose for a rich and accessible Public Domain to be integrated into the copyright legal framework.

- On section II 2. and the inalienability of moral rights

The Public Domain status of a work does not conflict with moral rights.

Moral rights still apply to works that are already in the Public Domain because copyright has expired at the regular end of the copyright protection term. Voluntary waivers of rights by their owners need not be addressed differently. If moral rights are respected upon the expiration of the copyright term, they are similarly respected when the rights holder voluntarily decides to dedicate his/her rights before the end of copyright protection.

The Public Domain should not be considered as a contradiction to moral rights. On the contrary, the act of dedicating a work to the Public Domain should be fully considered as a way to exercise one’s moral rights. This is why allowing rights holders to express their will in a free and informed manner is important.

- On last paragraphs, point 2

The definition of the term “material”, “including creative industries, the online environment, with reference to collaborative creativity and user generated content, and in regard to materials prepared by not-for-profit and public institutions”, is too generic. In our sense, it would be more appropriate for the concerned “material” to encompass “copyrighted works but also data, databases and compilations subject to copyright-related protection, performances, phonograms and protected broadcasts.”

This clarification should also be extended to the first part of the legal study which should not only focus on copyright but also on other applicable related rights.

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