As part of the its Development Agenda, the World Intellectual Property Organisation has published a report entitled “Scoping Study on Copyright and Related Rights and the Public Domain” by the always wonderful Professor Séverine Dussollier. In the interest of full disclosure, I would like to point out that I was consulted about Costa Rican law, so you may want to ignore my enthusiasm for this work and examine it yourself. This is a thorough and comprehensive study.
One of the main contributions of the study is that it accurately begins with the statement about the traditional negative view of the public domain as the absence of copyright. Professor Dussolier states:
“This study will keep a traditional view of the public domain, related to the subject matter not protected (or not any more) by copyright. Such a definition is primarily negative as its realm is the inverse of the scope of copyright protection.
This negative approach of the public domain prevails in most copyright regimes. It entails that if copyright is regulated and promoted, the elements of the public domain themselves are generally not subject to any rules or protection: the terms ‘public domain’ rarely appear in the provisions of the law. It is even more rare that specific rules are attached to the public domain or to its elements.”
This has indeed always been one of the most troublesome aspects of the public domain. As the importance of keeping some cultural spaces open becomes clearer, the issue of the lack of positive protection of the public domain becomes more worrying. Moreover, copyright legislation often does not define the public domain, and there are arguments that placing a work in the public domain may prove to be difficult.
The study therefore is an invaluable work bringing together the most disparate scholarship in the subject, and making an excellent effort at building the case for a positive public domain, but also sets out existing practices, including open licensing and the public domain.
This is a tour de force.