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Public Rights – Copyright’s Public Domains

16 May 2019

From IPKat:

What is the public domain? We know “of” it, but do we know exactly what it is made of or where to find it in the law? We certainly could not define it as simply (if at all) as we could list, off the top of our heads, the main exclusive rights of copyright. Yet we tend to agree that a healthy public domain is necessary. We also tend to agree that the public domain is the ‘other side of the coin’ that holds the copyright framework together. So why is the public domain underrepresented in statutes or in textbooks?

. . . .

Instead of describing where copyright ends, Greenleaf and Lindsay describe where public domains begin. They do so by referring to what they call “public rights”, i.e. all the rights according to which users can use and enjoy copyright content freely, which they argue form the substance of public domains in law. This approach goes against traditional accounts of copyright law, which let the readers work out for themselves what rights users enjoy on the basis of what protected authors can and cannot enforce by law.

. . . .

All we need to do, they argue, is to think about public domains as a set of positive “rights” in their own name instead of defining them in negative terms. In doing, perhaps we will see more policies at the national level which are as conscious of the public domains as the law has been of owners’ exclusive rights.

. . . .

First, the public domain under copyright law is protean, existing through a complex web of authorized uses (which Greenleaf and Lindsay call “public rights”). The authors define the public domain as the collection of public rights which allow the public to “use works on equal terms without seeking permission”

. . . .

Second, the book addresses public domains from a comparative perspective. As such, the book covers “public rights” as prescribed by international copyright and neighbouring treaties as well as various domestic laws. Australia, the United Kingdom, the United States, France, Germany, and China, are the countries more often cited.

. . . .
The authors have structured the book around the “public rights” that they identify as allowing the public to use a work without permission. With this “definition” in mind, the authors chart a list of 15 public rights (which we have compressed into 13 categories of rights below), defined as per their legal basis:

1.     Works failing minimum requirements [This category includes uses of works that may not be fixed, where fixation is required by law]

2.     Works impliedly excluded [This category includes uses of works that do not fit in the pre-established list of protectable copyright works]

3.     Works expressly excluded [This category includes works that have been expressly excluded by law. They are rare within national laws, but the Berne Convention’s exclusion of ‘news of the day’ is one example]

4.     Constitutional and related exclusions and exceptions [This category refers to uses of works that are allowed on the basis of constitutional rights or limitations, such as the freedom of expression or other human rights. It is particularly relevant in the US, where the Copyright Clause enjoys a constitutional basis, but the EU and the European Court of Human Rights have developed a similar jurisprudence with reference to international texts on human rights]

5.     Works in which copyright has expired [Self-explanatory]

6.     Public domain dedications [Ever heard of these? They are rare but they do exist, the authors explain. Some countries make provision for the relinquishment of copyright, such as in Chile, Kenya or India.]

7.     Public policy refusal against enforcement [This category covers uses of works allowed on the basis that copyright protection in the work may not be enforced due to its content. Once used to deny protection to immoral, obscene or blasphemous works, enforcement has been refused on the basis of ‘public policy’ in more recent jurisprudence. Think of the Glyn and Spycatcher cases in the UK. In China, works which contravene legislation will be denied protection]

8.     Public interest defence to enforcement [This category includes uses that would be allowed in court because it would be against the public interest. E.g., denying the use of a work that would be contrary to a protected human right or a state policy]

9.     Insubstantial parts [Again, self-explanatory; users have a right to use small parts of protected works]

10.  Ideas or facts [Users may freely use and reproduce any content that amounts to mere facts or ideas]

11.  Uses outside exclusive rights [Self-explanatory]

12.  Use granted by the rightsholders via statutory or voluntary [i.e. dedication of the work to the public domain by the author him/herself] licencing

13.  De facto public domain of benign use [This refers to uses of protected content going unchallenged by rights owners either because they do not mind, or because the use is done according to other conventions, alternative to copyright. The authors describe how uses of works in the de facto public domains have significantly increased with the internet and digital technologies that have changed the culture around use and re-use by making tracking and suing virtually impossible in most cases

Link to the rest at IPKat

Here’s a link to the book described in the review: Public Rights: Copyright’s Public Domains (Cambridge Intellectual Property and Information Law)

Here’s a bit more on the topic from Wikipedia (numerous links omitted, except for ImageJ, which PG had never heard of and which sounded interesting):

The public domain consists of all the creative works to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited,expressly waived, or may be inapplicable.The works of William Shakespeare and Beethoven, and most early silent films, are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired. Some works are not covered by copyright, and are therefore in the public domain—among them the formulae of Newtonian physics, cooking recipes,and all computer software created prior to 1974. Other works are actively dedicated by their authors to the public domain; some examples include reference implementations of cryptographic algorithms, the image-processing software ImageJ (created by the National Institutes of Health), and the CIA’s World Factbook. The term public domain is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as “under license” or “with permission”.

As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country.

. . . .

Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law.

According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property.

However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership.

. . . .

Patterson and Lindberg described the public domain not as a “territory”, but rather as a concept: “[T]here are certain materials – the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers – not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival.”

Link to the rest at Wikipedia

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