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.