The public domain is key to the promotion of innovation and should be fostered, but international intellectual property policies may hinder that process, said speakers at a side event to the last week’s meeting of the WIPO Committee on Development and Intellectual Property.

Limitations and exceptions to copyright should be expanded and made mandatory, policymaking should be based on evidence and the public domain should be clearly defined and listed internationally, they said. The 30 April event was organised by the UN Conference on Trade and Development and the International Centre on Trade and Sustainable Development.

The public domain is of importance not only for developing countries but also for developed countries, they said, and it can be used as a tool for implementing international policy changes because the public domain is considered a major component of innovation and technological development in developing countries, said Uma Suthersanen from Queen Mary University in London.

Recommendations 16 and 20 of the WIPO Development Agenda encourage the promotion and support of a strong public domain, but Suthersanen said there was a problem with “this invitation [in the recommendations] to embark in norm-setting activities that relate to the public domain” as this was inviting definition, implementation and interpretation problems.

The CDIP is in the process of implementing 45 approved recommendations on development and IP. Recommendation 16 states: “Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis.”

Recommendation 20 states: “To 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.”

A good example of an international legal provision that is difficult to interpret and implement is the so-called “three-step test,” said Suthersanen. The test which has its origin in the Berne Convention for the Protection of Literary and Artistic Works sets constraints on limitations and exceptions.

The three-step test is included in several international treaties: the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (the so-called “internet treaties”).

The first step requires that exceptions should be confined to “certain special cases;” the second requires that exceptions “do not conflict with a normal exploitation of a work;” and the third, that exceptions “do not unreasonably prejudice the legitimate interests of the author”, according to the WIPO website. The language makes it difficult to interpret the provision, said Suthersanen. “We have no idea, the judge has no idea, what is normal exploitation, for example,” she asked.

Suthersanen advocated for a clear definition of the public domain, incorporating the numerous definitions found at present and for an international public domain listing “because being territorial is senseless,” she said. For reference, she advised going to the existing structure of organisations that list public work and public property, such as the United Nations Educational, Scientific and Cultural Organisation (UNESCO).

Balance and Evidence-based Policy Needed

James Boyle, a law professor at Duke University who defines the public domain as the raw material free for all to use without permission or a fee, said that the IP policy process was in need of a shift and presented two propositions to alleviate the problem of what he characterised as a “broken system”. Those propositions which he said were not specific to the context of the WIPO development agenda, apply to all countries disregardful of their state of development.

It is not IP that ensures the development of science, culture and the economy, but the precise and correct mixture of IP and the material in the public domain, Boyle said. ”It is the balance between IP and the public domain, the stuff that we protect and the stuff which we chose not to protect that we should be focusing on, not the rights themselves,” he said.

The lack of evidence that IP protection fosters innovation, science, culture should lead policy makers to a shift of direction and to consider evidence-based policy, he said, adding that new rights should be created on actual evidence, with periodic restudy of those rights to evaluate their benefits. “The burden of proof should always be on those seeking new monopoly rights,” he said.

“We should worry because for the last 50 years, IP has been moved by [legislation and conventions] in only one direction,” widening the reach, strengthening the protection, and increasing the penalties for infringement, he said, with little evidence of a positive result.

The European Union database directive is a good example where IP rights did not achieve their goal, Boyle said. In the EU database directive, it was assumed that “the stronger the rights, the more innovation.” But the empirical study showed that the level of innovation in the EU did not progress, mainly because databases are built upon other databases and “every time you protect one database, you increase the input cost of creating the next database,” Boyle said.

Limitations and exceptions and the expiration of IP rights are just as important as the rights themselves and should be mandatory, Boyle said, adding that in the policymaking system that did not appear to be the case.

Presenting himself as a defender of the intellectual property system, who admitted to having “a warm relationship with [his] royalties checks,” Boyle said that “the equivalence of an environmental impact study of our IP policy” should be conducted. “We should look at what we have done and see where it works,” he said. When this has been done, he claimed, the results have been disturbing. In many cases, he said, “We are not making things better, we are actually making things worse.”