A better definition of the public domain is needed, but copyright and public domain are not antagonistic, said a study commissioned by the World Intellectual Property Organization presented this week. Also this week, a book on the role of copyright in access to knowledge in Africa was launched.

The study was presented in a side event to the WIPO Committee on Development and Intellectual Property (CDIP), which monitors the implementation of the 45 recommendations of the WIPO Development Agenda and is meeting from 22 to 26 November. Among those recommendations, some are specifically targeted towards the preservation of the public domain.

The public domain is an important part of copyright and IP in general, said study author Severine Dusollier, professor at the University of Namur (Belgium).The study was completed in May, and commissioned by WIPO as part of a series of studies and surveys to address concerns raised under recommendations 16 and 20 of the WIPO Development

Dusollier presented the study during the side event and at the plenary on Tuesday.

Recommendation 16 asks to “consider the preservation of the public domain within WIPO’s normative processes and deepens the analysis of the implication and benefits of a rich and accessible public domain.” And Recommendation 20 asks to “promote norm-setting activities related to intellectual property that support a robust public domain in WIPO’s member states (…).”

There is no antagonism between copyright and public domain, Dusollier said. The role of the public domain is to promote cultural heritage, and make it available. It allows low-cost access to works and can even give “a new life” to works out of copyright, and new interest from the public, she said, giving the example of the work of Freud which went into the public domain in Europe last year. In only the first six month of 2010, a number of new editions of Freud’s work were released, she said.

One of the main problems of the public domain is a question of definition, she said. It is by default defined by elements not protected by copyright. However, there is need for a more positive definition, not only the inverted image of copyright, she said. This leads to a situation where there is no protection of the public domain as such and no fixed boundaries as the public domain is linked to variations of copyright laws.

The difficulties related to the public domain definition also come from the principle of territoriality which makes it very difficult to identify the public domain in a cross-border project for example. The temporal scope of the protection also varies widely from one country to another, she said. The Berne Convention for the Protection of Literary and Artistic Works gives 50 years minimum protection but most countries have 70 year term of protection, up to 100 years in Mexico. A number of countries have repeatedly extended copyright term, which has led to increasing criticism from civil society.

The study offered a set of recommendations. To address identification issues, the rule of territoriality should be discussed, said Dusollier. Also, work should be done on the validity of the relinquishment of copyright, such as the publishing of works under a Creative Commons licence, and some international effort should be put into developing infrastructures for data. On availability and sustainability, the study recommends an enhanced role of cultural institutions such as the United Nations Educational, Scientific and Cultural Organization, and libraries.

Work should also be undertaken to assess the effect of any extension of copyright on the public domain, Dusollier said, adding that renewed exclusivity in public domain material by IP rights or technical measures of protection on this material should be prohibited.

Dusollier made a personal recommendation to pay special attention to technical protection measures, which have been applied to music because music is not protected by neighbouring rights, but could prove problematic if applied to other areas such as e-books. A new Shakespeare edition with two new introduction pages could be copyrighted for those two pages and have technical protection measures preventing access to the rest of the text, though it is in the public domain.

Access to Knowledge in Africa and Copyright

Separately, on 23 November, Geneva-based think tank IQsensato and the African Copyright and Access to Knowledge Project (ACA2K) launched a book entitled, Access to Knowledge in Africa: The Role of Copyright.

The book aims to provide readers with a clearer picture of the legal and practical issues created by copyright for access to learning materials in Africa and provides information on best policies and practices that would enable a wider access. The book is based on the work of ACA2K and focuses on access to knowledge in eight African countries: Egypt, Ghana, Kenya, Morocco, Mozambique, Senegal, South Africa, and Uganda.

Licensed under creative commons, the book can be downloaded here.