The penultimate day of the WIPO development committee held in-depth discussions on recommendation 20 of the Development Agenda which states:
To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.
The International Bureau information document on activities for implementation of proposal 20(CDIP/1/3) states that WIPO will
conduct a study on bad faith appropriation of distinctive signs and possibilities to prevent such practices. IP rights in distinctive signs, such as trademarks or geographical indications, confer exclusive rights over those signs, provided that particular conditions for protection are met. Problems can arise in situations where the appropriation of such signs occurred in an abusive manner. Examples for such practices are bad faith registration of trademarks incorporating signs that are considered to be in the public domain, such as descriptive terms, or the appropriation of signs that are part of a common communal heritage or patrimony, such as sacred signs or geographically descriptive signs. The study could research actual and potential problems as well as mechanisms for the prevention of such practices, and present conclusions.
To initiate activities to promote deeper understanding of problems in the field of copyright and related rights related to identification of public domain material (e.g. orphan works, use of rights management technologies, the role of search engines). To support the development of a database containing the repertoire of national copyright and related rights protectable works, including those in the public domain.The activities could include a comparative analysis of existing legislative approaches adopted in Member States, and examination of areas where greater clarity and tools for identifying public domain subject matter, including subject matter placed in the public domain by its creators, would serve the public interest. This could be the first step towards development of possible guidelines.
If requested by Member States, discussions in the SCP can focus more sharply on topics related to the safeguarding of the public domain. These may include the introduction of a worldwide definition of prior art that would prevent encroachments on the public domain (e.g. TK) or an adequate inventive step standard. Specific TK items have recently been introduced in the IPC and in the PCT minimum documentation. These activities will be continually updated and monitored in the future.
To create practical tools to ensure that public domain traditional knowledge and genetic resources are not the subject of illegitimate or inaccurately granted patents, including through the development of practical guidelines and mechanisms to ensure that traditional knowledge – once disclosed with the consent of its holders – is fully taken into account by patent search and examination authorities.
With respect to the public domain, Richard Owens (WIPO Secretariat) noted that there is a fundamental question of definition that frames the policy debate on this issue. The classical definition of the public domain (in the copyright context) is “what is not protected by copyright, i.e. rights that have expired, and subject matter that is deemed unprotected for public policy reasons, such as texts and judicial decisions”.
Owens contrasted the classical definition with a more vernacular approach to the public domain not rooted in traditional copyright discourse but rather predication upon the notion of “access to content, irrespective of whether content is copyrighted”. Owens mentioned collaborative works and the progress in information and communications (ICT) technology as part of this vernacular discourse on the public domain. He raised two potential studies WIPO could embark upon with respect to the public domain. The first would be a comparative analysis of countries’ legislation asking the question, “how do Member states define the public domain”. The second potential study would examine the how living creators use existing copyright structures to put their works into the public domain.
Michael Shapiro (United States of America) reaffirmed the Secretariat’s description of the public domain by noting the “classical dividing line between protected and non-protected works” as his delegation had “heard from the dais”. Shaprio reaffirmed the public domain’s import as a commons upon which creators drew inspiration from. With respect to the comparative analysis of legislation to clarify boundary between protected and unprotected, Shapiro cautioned that precision was required in endeavoring to delineate the contours of the public domain. Shapiro noted that copyright is territorial and that WIPO’s proposed public domain database was ambitious; before embarking on this project, the United States requested that the International Bureau produce a “scoping” document detailing the purpose and the cost of the database. Shapiro concluded his intervention by stating that digital technology provides “unprecedented access to works” providing the example of Project Gutenberg which published 50 ebooks a week.
Peter Beyer (Switzerland) noted that Switzerland did not have a copyright registry; therefore, he questioned whether having a public domain database would be feasible and cost efficient.
Cristiano Berbert (Brazil) echoed Richard Owens’ (WIPO) comment that “safeguarding the public domain is important”. With respect to the interface between the public domain, traditional knowledge and the patent regime, Brazil expressed its concern with WIPO’s suggestion for a worldwide definition of prior art and inventive step; Brazil requested the International Bureau that this be suppressed as patent harmonization is to say the least controversial, as evidenced in the failure of the Substantiative Patent Law Harmonization (SPLT) process.
Chile reaffirmed its commitment to deepening the public domain discourse in the CDIP. In particular, Chile noted that in the CDIP both the United States and Denmark were of the view that “intellectual property and the public domain were two sides of the same coin”. Chile welcomed the International Bureau’s proposed studies on the public domain landscape.
Richard Owens (WIPO) responded suggesting that one possible initial approach “is to see what is out there” using private and public databases. He allayed the fears of France (speaking on behalf of the European Communities and its Member States), Switzerland and the United States by stating that WIPO would not “create a worldwide database without a lot more preparatory work and guidance from member states”. Specifically, the International Bureau suggested that the Secretariat could “study issues related copyright documentation including works in the public domain, including private initiatives and voluntary registration systems”.
The United States riposted that “this is not actionable yet; at this point in time, we are all waiting for details before the International Bureau” could implement this recommendation on the public domain.
Brazil provided a constructive comment calling upon the “International Bureau will consider the possibility of developing the issue into a more grounded project in the next session”.
The second session of the CDIP concluded its deliberations on the public domain, as noted in the Summary by the Chair (Ambassador Trevor Clarke, Barbados), that the
Committee discussed activities for implementation of adopted recommendations 20 [on the public domain], 22, and 23 in Cluster B, [in the] list of 26, followed the same procedure as had been established during the first session of the CDIP. Accordingly, the Committee agreed that the proposed activities, as suitably modified following discussions, would be sent to the Secretariat to assess the human and financial resources requirements, and would be communicated to the Member States before the third session of the CDIP.
In plain terms observers to the CDIP can expect the WIPO Secretariat do a complete human and financial resources costing on recommendation 20 prior to the Committee’s third session. It will be interesting to see the price tag on promoting norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, “including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions”.