Commons-ism in One Country? – National and International Dimensions of the Public Domain Graham Greenleaf Professor of Law, University of New South Wales Visiting Fellow, AHRC Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh

National and International Dimensions of the Public Domain Samuelson’s ‘US-centric’ map

National and International Dimensions of the Public Domain A misleading dichotomy Misleading: ‘public domain’ vs ‘copyright works’ Almost all works contain both public and proprietary components, on a continuum between two extremes : –Purely public: eg a Shakespeare play –Purely proprietary?: in practice, an empty pole The normal nature of works is to be a composite of public and proprietary rights. Each work is situated at some point along a continuum between the two extremes.

National and International Dimensions of the Public Domain Defining public rights “Public rights” are all those aspects of copyright law and practice that are important to the ability of the public [or a significant class of the public] to use works without obtaining a licence on terms set (and changeable) by the copyright owner. Corollary: Private/proprietary rights are the rights the owner of copyright in a work can effectively exercise to refuse to allow another person to use the work, except on terms set (and changeable) by them. More accurately, these describe effective rights

National and International Dimensions of the Public Domain Determinants of the global public domain Why are some elements of public rights common to most jurisdictions? –near-universal adoption of Berne; –toward universal adoption of TRIPS –some Internet / search engine effects are global –some viral licences are becoming global It makes some sense to talk of a ‘global commons’ (or global public rights) –But many aspects of commons are jurisdictionally (ie nationally) determined

National and International Dimensions of the Public Domain Determinants of the global public domain - formal Berne’s constraints on public rights –Registration is not required (A18 etc) –Minimum term of life of author + 50 years (A7(1)) –Moral rights (eg integrity) may be permanent –It is a minimum rights treaty (A20) Permissive (at least neutral) aspects of Berne –Limits on de minimus aspects (A2(8)) – ‘news of the day’, ‘miscellaneous facts’ –Areas left open for national decision (eg compulsory licensing; fair use; legal materials) But TRIPS restriction - ‘3 step test’

National and International Dimensions of the Public Domain Determinants of the global public domain - informal Pre-Internet limitations on surveillance capacities - global private use commons Internet and search engines - global commons for searching texts? –achieved for author-published Internet texts –uncertain for all texts (Google book search etc) –egs of ‘commons by friendly appropriation’ Viral licensing - content-specific commons –Free and open source software (GPL etc); –Collaborative encyclopedic text (Wikipedia etc)

National and International Dimensions of the Public Domain Elements of a national public domain (Australia) Samuelson (2001) the first to attempt to ‘map’ the ‘public domain’ for all IPRs –she then recognised (2004) that ‘public domains’ were largely jurisdictionally specific –More maps followed … My attempt is limited to copyright, and sticks to a table, not a graphical ‘map’ –itemises the elements of Australia’s public rights, with a brief comparison of some to the USA

National and International Dimensions of the Public Domain More maps from Samuelson

National and International Dimensions of the Public Domain Elements of Australia’s public rights in © 3 elements determined by formal law –Scope of / limits on subsistence of rightsScope of / limits on subsistence of rights –Exceptions to rightsExceptions to rights –Extinguishment of rightsExtinguishment of rights 3 elements determined by informal practices –Voluntary public licences (take-up and limits)Voluntary public licences (take-up and limits) –De facto public rightsDe facto public rights –Effectiveness supports and constraintsEffectiveness supports and constraints

National and International Dimensions of the Public Domain An effective public domain (Australia) A national ‘public rights analysis’ helps prioritise how to preserve / strengthen a national ‘public domain’ New legal deposit requirements for digital and audio-visual works A ‘Right to Adopt Orphan Works’ Digging up the UnDead (or Populating the ‘Dead Authors Club’) Compulsory licence of government works? Public rights in publicly-funded works ‘Some rights reserved’ from collecting societies Voluntary licence interoperability Preventing voluntary licences becoming compulsory

National and International Dimensions of the Public Domain References & Acknowledgments References used for this presentation can be found at: This presentation and the associated paper were prepared as part of research under ‘Unlocking IP’, an Australian Research Council Linkage Project.Unlocking IP’