I recently wrote a small study in which I tried to highlight the importance of the right of access to the public domain using some of the practices that limit the possibility of affirming this right, which should be guaranteed to each person. Of course, we are dealing with a larger context, because the public domain sphere is considered, with solid arguments, to not only include works whose protection period has expired, but also works with open licenses or permissions derived from the law as a result of applying the exceptions and limitations corresponding to copyright. The study does not mean to be complete as far as these details are concerned, as it could be considered as only an impulse, a first step into the research of some legal principles less taken into consideration in the context of copyright, as the public domain and the right of access to the materials from the public domain.
I will leave a short summary below; the work can be read in full here.
Public Domain Protection?
It might seem inappropriate (and this might explain the question mark) to speak about a sector that includes works meant to be used freely and which are perceived by the majority as a symbol of non-property, meaning unprotectable, as opposed to the ones being protected by copyright. But the protection that I am talking about is in fact a form of safeguarding the rights that every person holds over public domain materials, which belong to everyone and over which we all have rights. It doesn’t mean that this protection is different from the one granted to authors and owners and, in fact, is necessary to emphasize the fact that there is no legal ground for which a work that belongs to everyone shouldn’t be protected as one belonging to one or some of us.
In this context, it is very important to notice that free use must not be confused with the right of appropriation. Private appropriation of public domain materials threatens individual creative expression because it limits the possibility of further acts of access. No form of use of public domain works should lead to a way of appropriation, damaging other users or in the detriment of other types of uses.
A widely known example of private appropriation in the detriment of public domain is that of Disney Enterprises, Inc. who started a series of trademark registrations of several character names, such as “Snow White”, a character that, in fact, belongs to the public domain because Disney’s adaptation was developed in 1938, after the Brother’s Grimm Anthology entered into public domain. Actually, the replacement of a determined and limited in time form of protection (such as copyright) was replaced with an infinite one, if one takes into consideration the possibility of trademark renewals, which are available in every legislation.
What is the Public Domain and the importance of the right of access
WIPO identifies three types of public domain works, each type having specific abusive forms of use or specific limitation forms of subsequent access.
- Works whose protection term has expired.
- Works that to not meet the legal conditions to be protected by copyright
- Invalidated materials (if we consider the US legislation from before 1978, for example, these would be works that have not been registered or those that, after their registration, have never been renewed).
The common characteristic of all these categories is the freedom of use, which represents an effect of the lack of any intellectual property rights. The work will be available for use, in principle, without restrictions, without the need of any payments or requesting said author’s permission. Another common characteristic is accessibility, which emphasizes the freedom of use because a free work that cannot be accessed is in fact a work that carries restrictions. Both freedom of use and accessibility mark the existence of certain rights that automatically arise in each person’s patrimony as far as the public domain materials are concerned.
Accessibility is only one aspect of the right of access, while the characteristic of being free cannot be accepted in the lack of a right of usage without restrictions, all of these generating, independently, as well as corroborated, the need for symmetric exploitation.
This is the context in which we can talk in detail about the existence of a right of access that can be exercised by any person, regarding any public domain work and without which the public domain itself is under the risk of remaining at the level of concept, with repercussions on innovation itself.
Threats to Public Domain
One of the most dangerous types of limitation of a legal and efficient use of public domain materials is the system called “Efficient technology”, which “allows control by the right holders through application of an access control or protection process” (encryption, scrambling, DRM, a.s.o.), and which has been created to prevent and limit any actions on protected works, to the benefit of the rights holder only.
As the corresponding legislative text shows, the control must be efficient in order to prevent all the unauthorized acts, and this definitely allows, at any point, abuses by the right holders, because it not only creates the possibility of a copy control, but, more importantly, a control of access.
An example for this type of abusive use of efficient technology (TPM – Technological protection measures) is that which enables e-book encryption. This will represent, in some instances, an abusive form of use of a public domain work because, by applying technological protection methods, it restricts the nature of these free materials, impeding the user’s ability to copy or distribute the public domain work.
Another type of danger to public domain is information society, or more likely the way the legislative system understands it, and the impact of information society on the public domain sphere.
Beside the category of works whose protection period has expired is that of materials that, in accordance with the internal or international legislation, are excluded from copyright protection (e.g.: mathematical concepts and formulas, theories, procedures and methods of function) and which are, by definition, part of the public domain.
The main problem that might be taken into consideration in this context of identifying certain dangers to the public domain sphere, is the existence of some legislative fluctuations, which tend to narrow the public domain sphere, as for instance certain legislative changes or court decisions that considered some material/information, which are by nature excluded from protection, as being protectable, such as functioning methods, or simple data.
The most recent decision in the case of Oracle v. Google states: “the APIs are protected by copyright, both in regards to their source code, as well as the structure, sequence and organization of the Java library.”
Considering that these APIs were used as functioning methods, this decision has the potential to significantly affect the public domain sphere, by considering these materials/information (if we can call them that) as being protectable by copyright.
An excessive control of copyright actually means a denial of the citizens’ right of access to the public domain, a denial of the importance of public domain in general and a denial of the special role the public domain has in innovation.
The context of the existence of technological protection methods and of some confusing regulations of what a legal use of the public domain means, has lead to numerous actions, such as that of the Communia Association, which issued, in 2014, a set of recommendations, from which we can mention the ones with implications involving the public domain such as point 6 and 7. I recommend you read them in full for a correct understanding.
“6. Any false or misleading attempt to misappropriate Public Domain material must be declared unlawful. False or misleading attempts to claim exclusivity over Public Domain material must be sanctioned.
In order to preserve the integrity of the Public Domain and protect users of Public Domain material from inaccurate and deceitful representations, any false or misleading attempts to claim exclusivity over Public Domain material must be declared unlawful. There must be a system of legal recourse that allows members of the public to get sanctions imposed on anyone attempting to misappropriate Public Domain works.
7. The Public Domain needs to be protected from the adverse effects of Technical Protection Measures. Circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works. The deployment of TPMs to hinder or impede privileged uses of a protected work or access to public domain material must be sanctioned.”