WIPO public domain discussions

Some really interesting discussions about the public domain took place as a part of the development agenda discussions last week at WIPO. It was all part of a discussion on how WIPO could:

promote norm-setting activities related to IP that support a robust public domain in WIPO’s 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. (Recommendation 20 of the Development Agenda)

An account of the discussions can be found here.

It was noted that there are different definitions of 'the public domain' - that sometimes it is defined to include anything that isn't copyrighted, and that other times it is defined to include anything that is publicly accessable, regardless of its copyright status. However, the two senses of 'the public domain' are linked; the great thing about 'the public domain' (former) is that things in it can be more easily put into 'the public domain' (latter) in old or new ways.

The Canadian Intellectual Property Office uses the former definition in its Guide to Copyrights:

Facts, ideas and news are all considered part of the public domain, that is, they are everyone's property.

Note too, that you cannot hold a copyright for a work that is in the public domain. You can adapt or translate such a work and have a copyright for your adaptation or translation.

Copyright applies to:

• a song
• a novel
• a play
• a magazine article
• a computer program

Copyright does not apply to:

• the title for a song
• the idea for a plot
• a method of staging a play
• Hamlet (a work in the public domain)
• the facts in the article
• the name of the program (this might be protected through a trade-mark registration)

The Government of Canada's Framework for Copyright Reform also uses the former concept:

Copyright protection exists for a limited time, typically the life of the author plus an additional fifty years. After that time elapses, protection ends and the work falls into the "public domain".

While the emphasis in intellectual property policymaking tends to be on the public domain in the former sense, there are many ways that governments do and should encourage the public accessibility of information and works (through use of open source software and Creative Commons licensing, government online policies, policies to make research accessible, etc etc). The connections between these policies and intellectual property policy should be kept in the forefront.

At the WIPO meeting the idea of doing a study: a comparative analysis of countries’ legislation asking the question, “how do Member states define the public domain” was discussed. I think such a study would be extremely helpful and interesting, especially in highlighting the importance of both interrelated senses of the public domain in government policy.

Pence on Procedure of Development Agenda

Eliot Pence has just put out a paper on process and procedure at the WIPO Committee on Development and IP. He has some suggestions for re-structuring the discussions away from the cluster approach currently in use. More interesting, in my view, are his observations about the importance of procedure in the CDIP debates and the role of the WIPO secretariat. He argues that what is sometimes referred to as 'procedural wrangling' is actually highly important and political; that under current procedures the committee chair may be placing too much emphasis on speed over a thorough process; that the involvement of the secretariat can have a moderating effect on debate because of its natural middle-of -the-road approach, and that the standard procedures used at WIPO committees are important to the way WIPO does its business and to how it implements the development agenda in the long term.

CDIP discusses IP & competition

This week's meetings of the Committee on Development and Intellectual Property wrap up at WIPO today. While the first two days focussed on financial and human resources aspects of implementing the development agenda, Wednesday focussed on the interface between IP and competition policy. The development agenda includes recommendation no. 7, that WIPO should

"[p]romote measures that will help countries deal with IP related anti‑competitive practices, by providing technical cooperation to developing countries, especially LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies."

There are calls for a workshop on the issue to be held in Geneva and for WIPO to develop a nuanced approach to the interface between competition policy and IP.

IP and competition policy is an area of the development agenda in which Canada has shown a particular interest, having hosted a workshop on that issue last summer at WIPO as a side-event to the development agenda discussions. It would make sense, therefore, if Canada were to be in the loop as positions continue to be developed at WIPO.