The WIPO Secretariat project proposal (CDIP/4/3) on intellectual property and the public domain was based on four components 1) copyright, 2) trademarks, 3) patents and 4) traditional Knowledge (TK) and traditional cultural expressions (TCEs). However, after extensive discussions on this project, a revised project proposal has been presented to WIPO Member States Friday afternoon (20 November 2009) for their consideration. One major change has been the deletion of the component on traditional knowledge and traditional cultural expressions.
The WIPO Secretariat proposed a work program on copyright and related rights with respect to the public domain. In his presentation on WIPO's project, Richard Owens (WIPO Secretariat) noted Egypt's request that the studies make it clear that there is a "relationship between limitations and exceptions to copyright and the public domain. The scope of the proposed study had two parts: an illustrative comparison of national legislation that directly, or indirectly, defines the public domain (as far as copyright is concerned), and a survey of initiatives and tools, technical and legal, which facilitate access, use, identification and location of public domain material.
The importance of registration/deposit of copyright and related rights in the evolving digital environment, beyond the traditional functions of facilitating the exercise of rights, is highlighted for example, as a means to prove the existence and/or ownership of a work, and to identify works that have fallen into the public domain. Uncertainty over copyright ownership and status of works may result in works not being made available to the public, even where no living person or legal entity asserts claims to ownership of copyright, or where the owner has no objection to such use. With respect to works of unknown authorship or in respect of which the owner cannot be identified ("orphan works"), uncertainty can undermine the economic incentive to create, imposing additional costs on subsequent users/creators wishing to incorporate material taken from existing works into new creations. Understanding how different registration and deposit systems function (both those established in the public sector, as well as the emerging private ones) will thus prove useful in order to identify works that have fallen into the public domain.
It is important to understand how different jurisdictions define the public domain, directly or indirectly, and to identify the existing initiatives and tools, technical and legal, which can facilitate access to, use, identification and location of public domain material. In addition, there is a need to clarify the relationship between copyright limitations and exceptions and the public domain, including legal, conceptual and functional aspects. In relation to copyright registration systems, the role of Rights Management Information (RMI) has tremendous potential for identifying and locating content. RMI is increasingly used in the networked environment, which helps users to customize their searches, find the content they are seeking, and where appropriate, enter into licensing agreements with right owners.
The new survey would expand on the 2005 Survey in at least four different respects, namely, (i) enable scrutiny of the operational requirements for voluntary registration/deposit systems in the digital environment and available search tools; (ii) include information on how Member States with voluntary registration systems address the issue of orphan works in those systems; (iii) solicit information on recorded/registered public domain subject matter; and (iv) attempt to include all Member States. The Survey would include conclusions based on the data received by Member States.
The study would also include a preliminary analysis of the possible implications of a rich and accessible public domain. Private Copyright Documentation Systems and Practices survey will cover the use of copyright documentation, including in the form of RMI, by bodies such as collective management organizations or the Creative Commons System, and would examine how these systems identify, or might contribute to identifying, content that is protected or in the public domain.
In the aforementioned paragraph, Bolivia insisted on replacing the word inserting the word "affect" in place of the original word "facilitate". Originally, Bolivia wanted to insert the phrase "or impede" after the word "facilitate" and before "access". After a long negotiation with the United States, the result was "affect" replacing "facilitate". Bolivia's premise was that technical and legals tools could "affect" access, use identification and location of public domain material" whereas using the word "facilitate" would prejudge the scoping study.
Discussions regarding patent is as follows: Information dissemination policies, the legal framework and technical infrastructures all play an important role in supporting access to and use of publicly available patent-related information and in facilitating the identification of technology that is in the public domain. These studies include useful information about the role of the patent system in the identification, access and use of technology that is in the public domain. As explained in the study on dissemination of patent information, the public domain in relation to patent law consists of knowledge, ideas and innovations, over which no person or organization has any proprietary rights. Subject matter in the public domain with respect to patents could be identified by confirming the absence of legal restrictions on use (i.e., exclusion from patent protection under applicable laws), the rejection of a patent application, the expiration of patent protection, non-renewal, and revocation or invalidation of a patent. However, in practice, it is often hard for the public to identify the validity of relevant patents due to the lack of effective tools in many jurisdictions such as patent legal status databases accessible to the public.
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281