A new peer-based culture of sharing is changing our cultural landscape through the revolutionary technological ability of multiplying references instantaneously and endlessly. Openness and access fuel this new culture of shared production of knowledge. Commodification and enclosure of the public domain threaten its growth and survival. The next portion this Report is intended to map the value of the public domain. To that end, the Report will briefly discuss sources, size, social and economic value, role, and uses of the public domain in Europe.
As mentioned earlier, to assess the value of the public domain the European Commission has launched a tailor-made project, the Economic and Social Impact of the Public Domain in the Information Society project. The findings of that project shall be of avail in the following analysis. Before delving into the assessment of the value of the public domain, we should start by identifying its sources. The application of this test is often a complex case by case analysis, and, thus, inherently unpredictable. In this unpredictability rests the inevitable indeterminacy of the public domain.
Expiration of copyright is a second relevant source of the public domain. Differently than the previous, this category is inherently predictable. Nonetheless, the incredible complexity of copyright term rules makes it very difficult to determine the copyright status of individual works.
This means that one of the biggest obstacles to positively identifying public domain works lies in the cumbersome process of determining the term of copyright protection. To this end promoting the development of efficient public domain calculators will help to counter this further source of indeterminacy of the public domain and thus help to unlock cultural, educational and economic potential of public domain works.
Nevertheless, the development of public domain calculator cannot be by any means a general remedy. The complexity of the legal framework, therefore, calls also for a simplification of the rules of copyright term calculation, as COMMUNIA recommends by means of its policy Recommendation 4. There is, then, other material whose nature as a source of the public domain is more contested. Therefore, firstly, contiguous to the structural public domain is a set of privileged uses under copyright exceptions and limitations, fair use, and fair dealing.
Public domain and copyright exceptions and limitations, in fact, share the public interest of enhancing access to culture and creativity. Nonetheless, a more extreme approach would locate within the public domain any use for which permission is not required. Secondly, it is debated whether, and to what extent, content distributed under open access models, such as open source software, free software, and creative commons material, can be located within the public domain.
However, as noted earlier, open source software, free software, and creative commons content belong to the category of contractually constructed commons and thus share much of the value of public domain content. As a final note, it is to be observed that the sources of the public domain may vary from jurisdiction to jurisdiction and shift overtime. By way of example, original design of useful articles and unoriginal compilation of facts will be feeding the public domain in the United States but not in Europe.
Conversely, business methods and certain biotechnology innovation will serve as a source of the public domain in Europe but not in the United States. This may be an issue when attempting to map the public domain. Drafting national public domain maps for comparative analysis should minimize this difficulty, though.
In order to determine the overall value of the public domain, the first step to undertake is to assess its size. So far only one quantitative study on the size of the public domain is available in Europe. The study focuses only on that part of the structural public domain that is composed by works whose copyright is expired. The results of the study show that. While a brief perusal of the relevant datasets indicates that much of this material may have only slight value today, nevertheless the scale and diversity of this vast public domain is indicative of significant value, cultural, social and commercial.
In addition, the study reports a public domain for sound recordings that consists at least of tens of thousands of items. Needless to say, this study is only an initial partial quantitative assessment of the European public domain. Further studies are awaited to come up with more complete and precise data, in particular in the sound recording sector.
In addition, any such study should be coupled with the assessment of the remaining part of the structural public domain and the amount of works that are voluntarily shared or dedicated to the public domain. A quantitative research on a related issue has been carried out in the United States.
They have tried to quantify the extent of the incursions into the public domain in books that have resulted from legal extensions of U. David and Rubin made estimates of lower and efficient upper bounds for each of the several statutory changes, measured in terms of the number of copyrighted works that unambiguously will have been returned to the public domain in every year, going forward into the 's.
The value of the public domain is a complex variable made up of many components. The public domain is a source of value in both economic and social terms. In addition, value can be extracted from the structural and the functional aspects of the public domain.
The contribution of the public domain can be assessed in positive or negative terms by estimating the economic and social loss of enclosure and commodification. The positive value of the public domain can be the effect of direct use, indirect use or reuse of public domain works, the application of public domain business models, the market efficiency triggered by a healthy public domain or, again, the democratic function of the public domain.
In any event, social and economic value is always very much tangled up in the assessment of the riches of the public domain. As per the value of a work entering into the public domain or public domain effect, we refer to the concept as described by Rufus Pollock within the framework of the Economic and Social Impact of the Public Domain in the Information Society project. An example may help to differentiate the two concepts. In addition, the social value of a work entering in the public domain will also include the deadweight loss of restricting access to a good that it is spared to society.
With the term deadweight loss, economic analysis refers to the loss for society consequent to that portion of population that cannot afford to buy the good at a monopolistic price. For that portion of population, society gains the entire value that each consumer puts upon the work. As an example of the value that may be lost due to enclosure of the public domain, recent studies have shown data that suggest that, as to fictional books, copyright extension imposes deadweight losses without any offsetting efficiency gain.
Instead, the titles in the public domain are significantly less expensive than their copyrighted counterparts. Finally, the assessment of the value of a work entering in the public domain must also take into account the value of reuse. In the case of monopolies on intellectual productions, innovators and creators will be prevented from developing derivative works or invention from the original. Reducing the public domain or retarding the entrance of a work into the public domain shall deprive the community of the correspondent social value of reuse.
Differently than the social value mentioned earlier, the value of reuse is a dynamic value that boosts society both economically and culturally. Together with the value that may be immediately extracted from the entrance of a work into the public domain, the public domain or a public domain approach to knowledge management may be a source of value on many different levels. Before delving into a more specific account of the social and economic value that can be extracted from the public domain, we note that, in general terms, public domain literature has identified eight values of public domain information and works:.
When it comes to value the mentioned benefits of the public domain, however, a quantitative measurement is impossible, at least with the present data and modeling tools. In general, these examples show the role and the value of the digital public domain in allowing new business models to emerge. In the case of file sharing, for example, few studies have found significant benefits of free access. One U. The Internet and the World Wide Web are further examples of the great wealth that can be built upon public domain material.
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These technologies were non-proprietary, and openness was the key to their revolutionary success. Oddly enough a strict enforcement of copyright law would bring to a halt the web as it is known today. Finally, several studies have highlighted that a public domain approach to weather, geographical data, and public sector information in general, may yield a substantial long-run value for Europe, running into the tens of billions or hundreds of billions of euros.
The value of privileged and fair use of copyrighted material is also to be taken into account when assessing the overall value of the public domain. Privileged and fair uses of copyrighted material are an integral part of the functional public domain. A recent, and so far isolated, study compiled data from to to show the contributions to the U.
Further, the study reveals that fair use industries have grown dramatically within the past twenty years, since the advent of the Internet and the digital information revolution. These data may help to make a very relevant finding: in the digital environment, open and public domain business models may spur growth at a faster pace than proprietary traditional business models. Those benefits may be, in fact, a more relevant contribution to our economic growth than the benefits coming from the exploitation of proprietary business models, as the study points out.
These findings, therefore, should play a central role in directing the European policy strategies. Promoting fair use and the functional public domain, thus related fair use industry, may have also a considerable added value for Europe. When contrasted with the United States case-by-case fair use model, the European list of predefined limitations and exceptions may be a vantage point for fair use industries in Europe.
Ultimately, however, the grant of exclusive rights to plant breeders is designed to benefit the society granting the rights.
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It provides an incentive for private research and development into new breeding techniques, thereby reducing the need for government funding to subsidize these activities. It encourages the development of new and beneficial plant varieties for use by farmers and consumers. An international system of IPR protection for plant varieties expands these benefits by facilitating access to new varieties created in other states. Once breeders are assured that their rights will be protected in other states, breeders will be more willing to make their new varieties available in those states assuming they have access to a distribution and marketing infrastructure.
This benefits farmers, consumers and researchers in many more jurisdictions. Lesser, , pp. The different policy objectives underlying the protection of IPRs have shaped the structure and evolution of the international intellectual property system. Most early domestic intellectual property laws provided no legal protection to intellectual property products created in other nations, thereby permitting those products to be exploited by free riders operating outside the state in which the products were created.
The unfairness of this result prompted governments in the late nineteenth century to consider an international approach to protect IPRs.
The drafters of the first multilateral intellectual property treaties quickly realized, however, that there was insufficient political support for reconciling many of the differences that existed among national IPR laws. For this reason, the drafters abandoned the idea of harmonizing diverse national laws to create a single, international IPR applicable in all signatory states.
They fashioned instead a system that creates a limited set of treaty-based obligations that each member state of that system is then required to implement in its national IPR laws. Implementation of treaty-based obligations in national IPR laws can occur in one of two ways. In some nations often referred to as "automatic incorporation" states , treaties become binding as a part of domestic law as soon as formal ratification procedures have been adopted.
In these nations, treaties are considered to be "self-executing" or capable of being given "direct effect" in domestic law such that courts and administrative agencies can construe the treaty directly and enforce the rights it grants to the owners of intellectual property products. In other nations, however often referred to as "legislative incorporation" states , treaties are considered to be "non-self-executing" and can only become binding in domestic law once the parliament or legislature has adopted legislation to implement the treaty.
In these nations, owners of intellectual property products rely on this domestic legislation rather than on the treaties themselves when they seek to enforce rights granted to them under the treaties. Because of the limited scope of international IPR agreements, there are to this day with the limited exception of the European Union no international IPRs available to inventors and creators who seek to market their products across borders; rather, IPRs are territorial in nature and are acquired and enforced on a country-by-country basis under territorially-circumscribed national IPR laws.
Thus, for example, the inventor of a genetically enhanced variety of corn who seeks patent protection for that variety must apply for protection in each country in which he or she hopes to sell the corn. The inventor must comply with all of the requirements that each country imposes for granting patent rights to the new variety. Recent international agreements have achieved some modest forms of procedural harmonization, but they have not altered the fundamental premise that national laws rather than international treaties are the immediate source of nearly all private rights in intellectual property products.
Two basic principles flow from this territorial approach to protecting IPRs. First, where national laws differ as to the scope or content of the protection they provide to intellectual property products, the rights enjoyed by the owners of those products will vary in different national jurisdictions.
Second, territoriality implies that each nation has the right to decide on the form of IPR protection to be granted within its own borders, provided that it complies with the obligations contained in international IPR agreements to which it is a party. Although territoriality thus gives governments some autonomy to set national IPR policies within their own borders, states often view the policies other governments choose as a subject of concern.
Indeed, the global reach of markets for intellectual property products makes this concern a necessity. To take just one example, most patent laws grant inventors owning patents within a state the right to prevent the importation into that state of products created in other nations that contain the patented invention.
Thus, where distribution markets transcend national borders, an industry may find itself precluded from distributing products in other jurisdictions as a result of patent rights, as occurred when Indian cotton producers were precluded from importing certain forms of transgenic cotton into the United States. Correa, , p. The territorial approach to IPR protection appears at first to present myriad difficulties for creators and owners of intellectual property products. In addition, the obligations these agreements impose have expanded over time, thus narrowing although by no means eliminating the differences among national intellectual property systems.
The following sections briefly explain the core obligations contained in most international IPR agreements. More detailed information concerning the rights and obligations contained in specific IPR agreements relating to plant varieties is provided in Part II below. One of the cornerstones of international IPR agreements is the national treatment principle. National treatment levels the playing field among treaty parties and prevents a state from giving its own creators and inventors unfair advantages over foreign creators and inventors. In the absence of national treatment, for example, domestic firms could freely exploit intellectual property products created in other member states while simultaneously enjoying legal protection within their own domestic markets.
The provisions of several intellectual property treaties contain a limited exception to national treatment known as reciprocity. Reciprocity is often applied to new IPRs as means of encouraging other nations to recognize the new rights and extend their protection to foreign nationals. Once a large number of states have recognized the new IPR, they may revise the treaty to eliminate the reciprocity option and impose a national treatment obligation. The most favoured nation "MFN" principle is a common feature of international trade agreements but has only recently been applied to IPRs.
The principle extends the national treatment rule by compelling a government that provides a privilege or benefit to one state within a treaty system automatically to grant that same privilege or benefit to all states within the same system. The MFN principle thus prevents a subset of states within a larger treaty system from entering into bilateral or other special agreements among themselves, unless they grant the rights contained in those agreements to all other parties within the larger treaty system.
Intellectual property agreements specify the subject matter characteristics of the products that are eligible for legal protection. In the context of patents, for example, a treaty may specify the types of inventions such as products and processes to which states parties must grant legal rights. These subject matter requirements are generally drafted using language that instructs member states concerning the basic characteristics that a product must possess for it to merit protection under domestic IPR laws, while preserving sufficient flexibility for states to tailor the details of protection to the particularities of their national legal systems.
It is the exclusivity of the rights granted that allows IPR owners to recoup the investment of time, money and resources required to create intellectual property products. The particular exclusive rights mandated by IPR agreements differ depending on the specific type of IPR product at issue. Intellectual property agreements also specify for their states parties the minimum term of years during which intellectual property products must receive legal protection.
Once that term has expired, the treaties do not require states to grant legal protection to the products. Thus, unless the state adopts a longer term of protection, after the expiration of the initial term of protection the product may be freely used by anyone for any purpose, including as a source for creating new products or simply for consumption. A corollary of this rule is that national IPR laws do not permit putative inventors and creators to claim IPRs in materials as they are found in nature or where they are already part of the public domain.
International IPR agreements constrain the ability of national governments seeking to restrict the exercise of IPRs to achieve competing social or policy objectives, such as access to information, research, education and cultural development. Restrictions designed to achieve these objectives are generally known as "exceptions and limitations" to exclusive IPRs. These exceptions and limitations generally appear in two forms.
The first form permits third parties to engage in specified uses of intellectual property products without the permission of the rights holder and without the payment of remuneration. The second form is known as a "compulsory licence. To prevent both forms of exceptions and limitations from eviscerating IPRs altogether, intellectual property agreements impose specific constraints the ability of member states to adopt them.
The grant of IPRs in national laws would be meaningless without adequate and effective mechanisms to enforce those rights. For this reason, recent intellectual property agreements specify the types of enforcement provisions that member states must adopt in their national laws. The penalties include civil judicial proceedings for monetary damages or an injunction to prevent the continued unauthorized use of the product and criminal proceedings commenced by the government itself.
Taken together, these core provisions of international IPR agreements impose significant legal obligations on member states. The agreements do not, however, purport to definitively address all of the issues raised by the grant of legal protection to intellectual property products. For this reason, the treaties are often referred to as "minimum standards" agreements in that they create only a basic floor of legal protection to which all member states must adhere.
There are three important consequences of this minimum standards framework. First, it allows member states the discretion to interpret and apply those provisions of the treaties that are ambiguous or that reasonably permit more than one construction. Second, a minimum standards approach permits, but does not require, states to grant additional IPR protections within their national laws. And third and perhaps most importantly, the framework leaves member states free to enact laws that serve other political, economic or social objectives, even where those objectives are in tension with IPRs, provided that those laws are not inconsistent with the terms of IPR agreements.
In the last five years, however, an increasing number of developing countries have entered into bilateral or regional trade and investment treaties with the United States or with the European Community. These treaties often contain higher standards of intellectual property protection than those specified in multilateral intellectual property agreements. Drahos, ; GRAIN, They thus restrict the minimum standards approach contained in the multilateral agreements, for example, by requiring states to enact specific intellectual property protection rules in their national laws or by requiring developing countries to follow the standards contained in multilateral agreements to which they are not parties.
For a more detailed discussion, see para. The minimum standards framework as limited by bilateral or regional treaties requiring higher standards of protection provides a methodology for analysis but not a solution for every potential clash between IPRs and other governmental policies. To understand how national governments can reconcile competing and sometimes conflicting domestic laws and objectives consistently with the obligations imposed by different international IPR agreements, it is first necessary to examine other international agreements and international institutions relating to plant genetic resources that have promulgated policies in tension with IPRs.
Before turning to a more detailed discussion of policy objectives, it is important first to identify the principal international institutions and international agreements that generate legal rules and standards relating to IPRs in plant varieties and plant genetic resources, as well as the institutions and agreements that generate rules and standards in tension with IPRs. Although a comprehensive discussion of these institutions and agreements is beyond the scope of this study, a basic familiarity with their most important elements is necessary to understand the legal regime of intellectual property rights in plant genetic resources for food and agriculture.
Intellectual Property: The Many Faces of the Public Domain - Google книги
For a more detailed analysis, see Helfer, , pp. The World Intellectual Property Organization "WIPO" is a specialized agency of the United Nations charged with "promot[ing] the protection of intellectual property throughout the world.
The WIPO Secretariat undertakes wide variety of activities relating to IPRs, including hosting diplomatic conferences of government representatives seeking to negotiate new international treaties. More recently, WIPO has created standing, expert and intergovernmental committees that conduct studies on particular intellectual property topics and generate nonbinding guidelines and recommendations for consideration by WIPO members. They proposed the addition of an article in the treaty requiring applicants for inventions derived from genetic resources to demonstrate that they had received permission to access those resources from the country of origin.
Industrialized countries opposed the proposal, arguing that it addressed substantive law issues that were inappropriate for inclusion in a treaty largely devoted to procedural issues. As a compromise, the WIPO Secretariat proposed the creation of a new intergovernmental committee the IGC to study the intellectual property aspects of genetic resources and traditional knowledge. Helfer, , pp. The WTO is a global intergovernmental organization dealing with the rules of trade between nations.