Copyright and the Public Domain

Dr. Lucie GuibaultEIFL Webinar 29 November 2012

Institute for Information Law

Content

Definition of the Public Domain Importance of the Public Domain Threats to access and re-use of Public Domain

material Possible solutions

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Definition

Structural Public Domain includes:

Works of authorship where the copyright

protection has expired

Information that is not covered by copyright

because not sufficiently original Voluntary commons and user privileges

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Importance of the Public Domain

‘If I have seen further, it is by standing on shoulders of giants’ – Isaac Newton (1676)

Access to the public domain fosters learning, innovation and creation of new works.

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No need to seek permission for any uses of the work, so members of the public may freely use public domain works, not only for nonprofit educational and library purposes but also for research, scholarship and even to commercially exploit the work.

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Threats to access and re-use … 1 /

Term of protection

Expansion of duration of protection From 50 years p.m.a. to 70 years p.m.a. or more!

Lack of harmonization between countries

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http://en.wikipedia.org/wiki/File:World_copyright_terms.svg

Example: harmonization within the EU

Despite the adoption of Directive 2006/116/EC, there is no effective harmonization of term within the EU. Ex.: Lithuania has – because of transitory

provisions – a number of different terms of protection

See: www.outofcopyright.eu

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Consequence of lack of harmonization

Difficulty in calculating the term of protection

Due to subsequent extensions – unclear

transitory provisions

Obstacles to cross-border access and re-use

of PD works

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Threats to access and re-use … 2 /

Tendency to (re)appropriate digitized public domain works through techniques, contracts or other rights:

Access/re-use encryption technology;

Contractual clauses preventing re-use;

Claim of other rights on digitized PD work

(database right, new copyright, property right)

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Possible solutions

Reduce the term of protection (!!) Apply the principle that ‘what is in the PD must

remain in the PD’ Mark PD works as such: Ex: edm:rights Consider registration system Explore new ways to fund digitization efforts so

that institutions are not tempted to (re)appropriate PD works

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