1
Historical Development of the Public Domain
Course: Research and Writing
Group: Information, Historical Approach
Professor: Saki Bailey
The International College of Turin - 2010
Historical Development of the Public Domain
by Ekaterina Mukhacheva
Contents
1.Introduction………………………………………………………………………2-4
2.Public domain: definition of the notion…………………………………………...4-5
3.Public domain: historical approach
3.1.
National phase……………………………………………………………6-9
3.2.
International phase…………………………………………………….10-11
3.3.
Global
phase:
present
and
future
of
the
public
domain……………………………………………………………………………11-14
4. Conclusions……………………………………………………………………15-16
Bibliography……………………………………………………………………16-18
Application………………………………………………………………………19-23
2
Historical Development of the Public Domain
"He who owns the information, owns the world"
W. Churchill
1. Introduction
As history shows, the most important and complicated task of law is to find
compromise between public and private interests. During the period of the XIX-XX
centuries uncontrolled capitalism did not protect public and environment. It gave a
chance to reach people to have properties without clear limitations, to privatize even
those commodities that should be used by all community irrespective of social status
and financial position to the prejudice of common welfare. Communism came up to
take capitalism’s place in some countries as a result of dissatisfaction with this
situation but it also could not find equilibrium of interests, did not prove its value,
and totality nationalization showed its nonviability. Unfortunately, modern capitalism
and privatization of all kinds of commodities as its main tool also are undergoing
crisis. That is why the modern world is trying to find new “life form”. It is hard to say
whether it will be “new social capitalism” or “communism with a man face” or
something else. In any case, it should be based on balance of public and private
interests in all spheres of life, rather than uncontrolled and at times unreasonable
privatization and nationalization of all types of goods including information.
Information can be considered as a type of goods because of its valuable, scarce
and appropriable.1 Moreover, this commodity is inconsumable (use of the
information does not lead to its reduction) therefore unique. Information being a
goods can be in an ownership in 3 main forms: private, state and public (public
domain). Private property regime limits public access to information: you can’t use it
to create new knowledge without payment or/and author’s permission. Therefore,
See: Gene Wunderlich, “Property Rights and Information”, Annals of the American Academy of Political and Social
Science, Vol. 412, The Information Revolution (Mar., 1974), 82-88. Gene Wunderlich found an interesting connection
between these two phenomena (information and property). Author suggests that from the one point of view law (and
property as its part) is a big information system (theory “property as an information”). On the over hand information
can be an object of property because it meets three characteristics: valuable, scarce and appropriable (theory
“information as a property”).
1
3
Historical Development of the Public Domain
increase of protection of private interests by the laying down a private property
regime of information leads to decrease of common good presently.
But the importance of the public domain as the base commodity for developing
information-oriented society it's impossible to overestimate. Indeed, as it was
declared in the Geneva Declaration of Principles2, one of the most important task for
our community is “to build people-centered, inclusive and development-oriented
Information Society, where everyone can create, access, utilize and share
information…”3. According to this idea participants of the World Summit recognize
that rich public domain as “an important international instrument promoting public
access to information”4 is one of the main tools to achieve this target.5
However, the powerful ideology of total protection and strengthening of the
Intellectual property regime preceded this international policy of Information
Society’s creation and reduced the public domain is still stronger. By the historical
and legal analysis of the most important intellectual property’s acts both national and
international6 in the West I will demonstrate how during the last 300 years western
society fought for the protection and domination of Intellectual property with the
minimum preservation of the public domain. I will show also that Western hegemony
establishing the totality of Intellectual property regime resulted in a situation that
developing countries suffer because of this high standards of intellectual right’s
protection.
Thus, in my paper I would like to tell the story of eternal struggle between private
and public interests; struggle of western countries aiming at imposition of western
2
Declaration was received by the World Summit on the Information Society (WSIS) took place in Geneva from 10 to
12 December 2003.
WSIS Outcome Documents – December 2005, the Geneva Declaration of Principles, Item 1,
http://www.itu.int/wsis/outcome/booklet.pdf. Second part of the Summit, Tunis phase, held 16-18 November 2005 and
produced the Tunis Commitment and Tunis Agenda for the Information Society with the similar contents.
3
WSIS Outcome Documents – December 2005, the Geneva Plan of Action. Action lines. Access to information and
knowledge, Item 10a, http://www.itu.int/wsis/outcome/booklet.pdf.
4
See: WSIS Outcome Documents – December 2005, the Geneva Declaration of Principles, Item 26,
http://www.itu.int/wsis/outcome/booklet.pdf.
5
6
The British Statute of Monopolies 1623, The British Statute of Anne 1710, the Paris Convention for the Protection of
Industrial Property 1883, the Bern Convention for the Protection of Literary and Artistic Works 1886, The Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) 1994.
4
Historical Development of the Public Domain
standards worldwide illustrated by historical development of Intellectual property law
as a fight between correspondingly exclusive rights (property) and the public domain
(free information, common).7
2. Public domain: definition of the notion
Information as a knowledge derived from study, experience, or instruction and so
on can be divided on 2 groups from the legal point of view:
1. Information that is under protection of Intellectual property law; there is no
free access to this information without payment or authors’ permission.
2. Public domain is an information that are not protected by Intellectual
property law at all, if the intellectual property rights have expired, and/or if the
intellectual property rights are forfeited, and/or if
the possessor of the
intellectual property right grants the results of his or her intellectual work to
society.8
In other words public domain is an information that is freely available to every
member of society. That is why it can be considered as a type of commons. It is
possible also to consider public domain not only as information that is out of legal
protection but also as a legal institute, sum of legal rules that define legal status of
that information (institutional approach).
It should be mentioned that in spite of frequent using of term “public domain” in
legal documents and especially in doctrine it is very hard to find legal definition of
that notion in both national and international legislation. I suppose that the most
correct (if not the only) legal definition of the notion of the public domain was
established by UNESCO’S Recommendation concerning the Promotion and Use
of Multilingualism and Universal Access to Cyberspace 2003: “Public domain
information is publicly accessible information, the use of which does not infringe any
See: Susan Sell, Christopher May, “Moments in Law: Contestation and Settlement in the History of Intellectual
Property”, Review of International Political Economy, Vol.8, №3 (Autumn, 2001), 468.
7
8
See: The Linux Information Project. Definition of the public domain, http://www.linfo.org/publicdomain.html. This
source of definition of the public domain is interesting because Linux is one of the most popular open source’s project
in the modern world.
5
Historical Development of the Public Domain
legal right, or any obligation of confidentiality. It thus refers on the one hand to the
realm of all works or objects of related rights, which can be exploited by everybody
without any authorization, for instance because protection is not granted under
national or international law, or because of the expiration of the term of protection. It
refers on the other hand to public data and official information produced and
voluntarily made available by governments or international organizations”9.
Paul F. Uhlir, analyzed the above definition, came to the conclusion that the
relationships among the different types of public sector and private information can
be summarized in the following table that illustrates perfectly distinction between
intellectual property and public domain10:
Public
domain
information
Protected
information
Public sector information
Private information
Governmental public
domain information
Information produced and
voluntarily made available
without protection by
governments or international
organizations. As a general
principle, information
produced by the public sector
may be presumed to be part of
the governmental public
domain, unless expressly
protected.
Protected governmental
information
Public sector information
protected by intellectual
property or by other
measures, such as laws
protecting national security or
personal privacy.
Unprotected information of
private origin
Public domain information
which is not in the
governmental public domain.
This includes information
which is no longer protected,
is unprotectable, or is
expressly placed in the
public domain by private
rights holders.
Protected private information
Information owned by
private parties which is
protected by intellectual
property, by laws such as
those protecting personal
property or confidentiality
(e.g. trade secret), or by
contract.
9
Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace adopted
by the UNESCO General Conference in 2003 (32 nd session). Appendix (Definitions). Item 11,
http://portal.unesco.org/ci/en/ev.php-URL_ID=13475&URL_DO=DO_TOPIC&URL_SECTION=201.html.
10
See: Paul F. Uhlir, Policy Guidelines for the Development and Promotion of Governmental Public Domain
Information (Paris: UNESCO, 2004), 6.
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Historical Development of the Public Domain
3. Public domain: Historical approach
To understand the direction in which development of public domain moves it will
be useful to study the history of development of intellectual property and public
domain as its component that is regulated but not protected by it. In “Private Power,
Public Law: The Globalization of Intellectual Property Rights”, Susan Sell suggests
that the history of intellectual property (and consequently public domain as its part) is
best understood as a movement through three general phases: national,
international, and global11.12
3.1.
National phase
This period has been lasting from the ancient times to the end of XIX century
when the Paris Convention for the Protection of Industrial Property (1883) and
The Bern Convention for the Protection of Literary and Artistic Works (1886)
were signed. During the most part of this period results of intellectual work were not
objects of wide commercial intercourse because of widespread in all over the world
(both western and eastern its part) idea that “knowledge is a gift from God,
consequently it cannot be sold”13. So, there was no special legal regulation and
protection of intellectual property albeit intellectual work exists always and its results
were recognized as a property of society at all (public domain), not only an author:
“… genius was given not for the benefit of the possessor, but for the benefit of
others”14. Enactment as a tool of intellectual property’s protection took place only
with the becoming of the private property on results of intellectual work in the end of
11
See: Susan K. Sell, Private power, Public Law: the Globalization of Intellectual Property Rights (Cambridge:
Cambridge University Press, 2003), 10.
12
I think that this classification is the most suitable in context of my research, but I need to say that there are another
classifications of periods of intellectual property rights’ history. For instance, R.E. Evenson and Jonathan D. Petnam
mark out 5 periods in the USA’s history of intellectual property rights: 1. The Formative Period, U.S. Patent Law
(1787-1862), 2. Toward an International Intellectual Property Union (1862-1939), 3. Expansion of the International
Economy (1950-70), 4. North-South Conflict in International Patent Law (1970-80), 5. Piracy Issues (1980-86). See:
R.E. Evenson, Jonathan D. Petnam, “Institutional Change in Intellectual Property Rights”, American Journal of
Agricultural Economics, Vol.69, №2 (May, 1987), 403-409.
Carla Hesse, “The Rise of Intellectual Property, 700 B.C. – A.D. 2000: an Idea in the Balance”, Daedalus, Vol.131,
№2 (Spring, 2002), 26-29.
13
14
Francis Wayland, The Elements of Moral Science (London: The religious tract society, 1835), 275.
7
Historical Development of the Public Domain
the national phase but
“… well before there was a formal legal definition of
intellectual property, there were attempts to organize the control of valuable
knowledge on behalf of various groups who stood to gain from its exploitation”15. For
instance, artisans tried to protect their knowledges by closed system of craft guilds as
the main innovators16 during the Middle Ages.
The next step of this phase was system of privileges / system of granting patents
from the monarch used as a method for encouraging the migration of artisans who
were possessed of necessary knowledges. Such patents granted exclusive possibilities
for possessors but these possibilities were not rights because it depended on
monarch’s will. It was just a grace.17 Important for society information was in the
state ownership, that is why it is impossible to talk about neither private property, nor
public domain in modern sense of these notions during these times. This system of
privileges arose in Venice but spread further by the migration of Venetian
glassblowers18.19
Thus, until the end of XVIII century state and private patronage (not author's
emoluments ensured by law) was the main source for financial supporting of creative
work. Also there was no sharp necessity for protection of its result until the rapid
development of international trade and invention of new technologies that gave an
opportunity to use this result without author’s permission and to put it widely into the
civil circulation. Invention of printing press in Europe by German Johannes
Gutenberg around 1441 was turning point of development of the Intellectual Property
Law (copyright). Printing allowed for multiple exact copies of a work, leading to a
more rapid and widespread circulation of ideas and information. Therefore, the main
factors of development of the Intellectual right law, - I can conclude - were growth of
15
Susan Sell, Christopher May, Ibid., 457.
See: Stephan R. Epstein, “Property Rights to Technical Knowledge in Premodern Europe, 1300-1800”, The American
Economic Review, Vol.94, №2 (May, 2004), 383-387.
16
17
See: Carla Hesse, Ibid., 30.
18
See: Susan Sell, Christopher May, Ibid., 476.
19
Interesting that the first patent for invention was granted in 1421 to Filippo Brunelleschi (1377 - 1446), one of the
foremost architect and engineer of the Italian Renaissance, for invention of ship rotary crane.
8
Historical Development of the Public Domain
science and industry, division on labour, individualization of intellectual labour as a
special kind of activity, transformation of results of intellectual labour into the
commodity and involvement into the trade turnover.
While governments and church encouraged printing in many ways, which allowed
the dissemination of Bibles and government information, works of dissent and
criticism could also circulate rapidly. So, another aim for setting system of privileges
was monarch’s wish to censor. As a consequence governments established controls
over printers across Europe, requiring them to have official licenses with exclusive
right to trade and produce books and make inventions for a fixed period of years. And
this licenses were granted usually only to appointed subjects. In England for example
the printers, known as stationers, formed a collective organization, the Stationers'
Company. In the 16th century the Stationers' Company was given the power to
require all lawfully printed books to be entered into its register. Only members of the
Stationers' Company could enter books into the register. This meant that the
Stationers' Company achieved a dominant position over publishing in 17th century
England. No wonder that with growth of the impact of bourgeoisie on social and
political life that system of privileges was eliminated. Particularly, the monopoly,
granted to the Stationers' Company through the Licensing Act 1662, came to an end
when parliament decided to not renew the Act after it lapsed in May 1695.
Then system of privileges was replaced by national legislation that also protected
authors’ rights only during definite period of time on the expiry of that results of
intellectual work became public domain. Difference between system of privileges and
national intellectual property legislation is that with the becoming of the latter the
general rules of intellectual property’s protection were established. Protection is no
longer dependent on the will of the monarch.
It is considered that the origin of copyright and patent law were respectively The
British Statute of Anne20 1710 and The Statute of Monopolies 1623. Enactment of
the Statute of Monopolies was the result of fight against unreasonable granting of
Full name - “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or
purchasers of such Copies, during the Times therein mentioned”.
20
9
Historical Development of the Public Domain
patents for goods of favourites or British colonies with financial difficulties and
unfair reduction of the public domain: “This led to a large number of disputed or
objectionable grants, made to individuals who were not the inventors nor even
specialists in the particular fields of endeavour, or worse, awarded when the
processes (or derivations) were already well known and at least partly (if not
wholly) in the public sphere”21. The Statute of Anne was the first national legal act
that protected copyright. According it term of the protection was established as 14
years and could be extend for 14 years once.22 After that works of literature went into
the public domain.
Further development of national legislation protecting intellectual property in
different countries was under the influence of the struggle between more popular
school of natural rights (right on result of person’s intellectual work as natural right
that should be protected) and the utilitarian doctrine (our mental activity is social,
therefore its results should belong to society and should not be protected). As I
showed the way to find balance of these theories was found easy in western
countries: protection of author’s private property’s rights during a certain time, and
then – going into the public domain. The utilitarian doctrine and nationalization of
works of literature were realized wider only in soviet Russia and China.23
Therefore, development of Intellectual property law during the national phase
began from the absence of this legal institute, absence of protection of exclusive
rights and factual domination of public domain (1 step) through the system of
privileges that gave a grace not rights and protected not authors and inventors but
state (2 step) to the establishment of national Intellectual property law that tried to
provide balance between private (protection of exclusive rights) and public (public
domain) interests (3 step).
21
Susan Sell, Christopher May, Ibid., 479.
22
See: The Statute of Anne, http://www.copyrighthistory.com/anne.html
23
See: Carla Hesse, Ibid., 43.
10
Historical Development of the Public Domain
3.2.
International phase
On this phase of historical development of Intellectual property law regulation
and protection went out of countries boarders, became international. Two principle
international Conventions marked the beginning of new era of Intellectual Property
Law: The Paris Convention for the Protection of Industrial Property of
March 20, 1883 (total amount of contracting parties - 173); and The Berne
Convention for the Protection of Literary and Artistic Works of September 9,
1886 (total amount of contracting parties - 164).
Both these conventions were prepared by the Swiss Federal Office for Intellectual
Property established in 1888 in Bern. The organization subsequently relocated to
Geneva in 1960, and was succeeded in 1967 with the establishment of the World
Intellectual Property Organization (WIPO) by treaty as an agency of the United
Nations.
The international exhibitions of inventions in Vienna in the 1875 gave rise to
enactment of these conventions: participants feared that their ideas would be stolen,
that is why in 1873 the Austro-Hungarian Empire adopted a temporary (during
exhibition) law protected foreigners in order to encourage their participation. This
law became a prototype of the future Paris Convention. It is necessary to say that the
latter did not establish the term with expiry of that protection of exclusive rights
stops.24 This period should be defined in national legislation. In contrast, The Bern
Convention 1886 protects literary and artistic work during the life of author and 50
years after his death.25 According Universal Copyright Convention 1952 the term of
protection of works should not be less than during author’s life and 25 years after his
death.26 So, analysis of the main international documents enforced during
24
See:
The
Paris
Convention
for
the
http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html
25
See: The Berne Convention for the Protection
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
26
Protection
of
Literary
of
and
Industrial
Artistic
Property,
Works,
1883,
Article
7,
See: The Universal Copyright Convention, Article IV, Geneva, 6 September 1952, http://portal.unesco.org/en/ev.phpURL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html
11
Historical Development of the Public Domain
international phase demonstrates reduction of term of protection of intellectual
property rights and rising up of the public domain.
Also flexibility towards participants of the conventions was one of the main
characteristic of the system that was created during international phase27: “The
system permitted wide variation in the scope and duration of protection afforded.
Many countries denied patent protection for pharmaceutical products in order to
contain costs of necessary medicines”28. It means that public domain’s share was high
to protect the most important interests of society (health, for example).
So, during the international phase the institute of International intellectual
property law was created. The regulation provided by the most important
international conventions in this sphere was very flexible. This allowed the different
countries to provide own policy in establishing of private-public balance and protect
social interests effectively.
However USA has come to the force in innovation and accordingly in multilateral
economic regulation after 1945. And this fact is the most crucial for understanding of
the historical origins of the TRIPs Agreement as the beginning of new global phase
of development of the Intellectual property law.
3.3.
Global phase: present and future of the public domain
It is considered that that beginning of this phase was The Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPs Agreement)29 that
administered by the World Trade Organization (WTO) that sets down minimum
standards for many forms of intellectual property regulation as applied to nationals of
other WTO Members. It was negotiated at the end of the Uruguay Round of
the General Agreement on Tariffs and Trade (GATT) in 1994. The main promoter of
TRIPs is the USA. As was noticed “attempts to extend legal protection to basic facts
See: Nagesh Kumar, “India, Paris Convention and TRIPS”, Economic and Political Weekly, Vol.33, №36/37
(September 5-18, 1998), 2334.
27
28
29
Susan Sell, Christopher May, Ibid., 485.
See:
The
Agreement
on
Trade-Related
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
Aspects
of
Intellectual
Property
Rights,
12
Historical Development of the Public Domain
and other public domain information demonstrate that the public information space is
slowly being reduced”30 in this country. This fact can help to understand content of
TRIPs.
Contrastive analysis of the main conventions in the sphere of Intellectual property
law can’t show clearly tendency of reduction of public domain’s protection in
international legislation (see Application). For instance, The Berne Convention 31
allows participants to withdraw more wide range of copyrights’ objects from the legal
protection than the TRIPs32 and
consequently it establishes wider sphere of
copyrights’ public domain. But the TRIPs33 allows to withdraw more wide range of
objects of patent law from the protection than the Paris Convention. Also TRIPs
establishes more complicated procedure for registrations’ annulations.34 So, it seems
that in the sphere of patent law the idea of public domain sounds loudly in the TRIPs
than in The Paris Convention.
Unfortunately, inflexibility of the TRIPs’ requirements in the process of its
practical application, refusal of leading countries (the USA first of all35) promoted the
TRIPs to adopt its provisions accordingly to the economic status and other problems
of developing countries confirm conclusion about reducing of public domain for
benefit of total patenting in current International intellectual property law. For
instance it is very hard and not useful for society of developing countries suffering
from different illnesses to patent all pharmaceutical products.36 But according to the
Tomas A. Lipinski, “The Commodification of Information and the Extension of Proprietary Rights into the Public
Domain: Recent Legal (case and other) Developments in the US”, Journal of Business Ethics, Vol.22, №1, Ethics of
Information and Communication Technology (Oct., 1999), 63.
30
31
See: The Berne Convention for the Protection of Literary and Artistic Works, Articles 1, 2bis, 9, 10, 10bis, 18,
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
32
See: The Agreement on Trade-Related Aspects
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
of
Intellectual
Property
Rights,
33
See: Ibid., Article 17, 26, 27, 30, 31, http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
34
See: Ibid., Article 19, http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
Article
9,
See: Donald G. Richards, “Trade-Related Intellectual Property Rights”, Review of International Political Economy,
Vol.12, №3 (August, 2005), 535.
35
36
Even mathematical analysis can show that both in the short and long run developing countries will not have gains
from such patenting. See: Phillip McCalman, “Who Enjoys “TRIPs” Abroad? An Empirical Analysis of Intellectual
Property Rights in the Uruguay Round”, The Canadian Journal of Economics, Vol.38, №2 (May, 2005), 574-603.
13
Historical Development of the Public Domain
TRIPs they have to do that if they ratified it. That is why the TRIPs has been
criticized by the anti-globalization movement. Members of the movement object, for
example, to its consequences with regards to the AIDS pandemic in Africa. In 2001,
developing countries, concerned that developed countries were insisting on an overly
narrow reading of the TRIPs, initiated a round of talks that resulted in the Doha
Declaration. The Doha declaration is a WTO statement that clarifies the scope of the
TRIPs, stating for example that the TRIPs can and should be interpreted in light of
the goal “to promote access to medicines for all"37.
From the this point of view weakening of the categoricity of the TRIPs with
attempted to find new balance between public and private interests; between interests
of developed and developing countries might be good.38
Thus, the TRIPs leads to reduction of public domain. It is strange especially that
even private actors invest big money in the development of public domain today:
“From large-scale investments by pharmaceutical firms in public domain gene
sequences, to massive investments by IBM in "open source" software (Linux), to the
advent of the "Creative Commons" concept that permits any creator of digital content
to specify open-access terms of use, we have been witnessing massive growth in
private initiatives to expand the public domain… These investments demonstrate that
private action, and not just government policy, can augment the public domain”39. Of
course private actors have their own reasons for such “Property-Preempting
Investments”40. For example, IBM is trying to compete with Microsoft by this
investment: customers of open-source Linux don’t feel dominance of corporation like
in usual operating system and because of that prefer it.
In the sphere of medicine there was the similar situation. In February of 1995
Merck Pharmaceuticals became the leader of creation of the Merck Gene Index,
37
Doha
WTO
Ministerial
2001:
Ministerial
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm
38
Declaration,
Art.
17,
See: Duncan Matthews, Globalising Intellectual Property: The TRIPS Agreement (London: Routlegde, 2002), 6.
Robert P. Mergers, “A New Dynamism in the Public Domain”, The University of Chicago Law Review, Vol.71, №1
(Winter, 2004), 183.
39
40
Term by Robert P. Mergers. See: Ibid.
14
Historical Development of the Public Domain
public database of genes. The reason was a threatening situation: many independent
firms were filing patent applications on different gene sequences. So, the key
strategic significance of the Merck Index is that it precludes patents for any sequence
published prior to another firm's isolation of the sequence.
Therefore, I can conclude that during the global phase of the development of
Intellectual property law there is a gap between willingness of our society to get more
wide sphere of public domain’s information and lagging modern international
legislation that reduces it.
But statement of this fact does not mean that public domain should be raised up
without any limitations. We need to remember that increasing of public domain
means not only more wide access of society to information but also reduction of
author’s and inventor’s profit. This can lead to the situation that they will conceal
their works and inventions from society. Eminent domain can be the possible solution
of this problem: state buys necessary for society results of intellectual work, authors
and inventors get payment. Of course for effective realization of this scheme state
needs to lay down fair rules to establish necessary conditions for eminent domain’s
use, amount of compensation and author’s and inventor’s protective devices from
aggressive eminent domain.41
So, we need “pluralistic approach to Intellectual property”42, balance between
“justice (i.e. access to information – E.M.), autonomy (i.e. the right to control
Intellectual property – E.M.), and utility (i.e. the best consequence for society’s
improving – E.M.)”43, legal regulation of Intellectual property ad hoc with the taking
into account different problems of particular country.
See: Richard V. Adkisson, “Intellectual Property and Eminent Domain: If Ever the Twain Shall Meet”, Journal of
Economic Issues, Vol.36, №1, (Mar., 2002), 41-53.
41
D.B. Resnik, “A Pluralistic Account of Intellectual Property”, Journal of Business Ethics, Vol.46, №4, (Sep., 2003),
331-332.
42
43
Ibid., 332.
15
Historical Development of the Public Domain
4. Conclusions
The history of Intellectual property law is the history of fight between
dissemination and exclusion of information, between public (public domain) and
private (exclusive rights) interests. The border between these phenomena is very
dynamic, depends on political conjuncture and level of economic development.
Particularly, in the conditions of underdeveloped trade and low speed of
dissemination of knowledge during the Ancient times and the Middle ages there was
no Intellectual property law as a legal institute, rights of authors and investors was
not under the protection. Results of intellectual work were considered as property of
all society. This allows to talk about factual domination of public domain regime.
Then the system of privileges gave a grace (monopoly privileges in the sphere of
intellectual work) - but not rights - and protected not authors and inventors - but state.
So it is impossible to talk about neither private right on results of intellectual work,
nor public domain during this period.
The establishment of national Intellectual property law was accompanied by the
first legal attempts to find balance between private and public interests: protection of
exclusive rights was temporary, after expiry of the term of protection result of
intellectual work went into the public domain.
During the international phase of the development of Intellectual property law the
institute of International intellectual property law was created. The regulation
provided by the most important international conventions was very flexible. This
allowed the different countries to realize own policy in establishing of private-public
balance and protect social interests effectively.
Gap between willingness of our society to get more wide sphere of public
domain’s information and lagging modern international legislation that reduces it
under the pressure of developed countries characterizes modern international
regulation: private actors spend a lot of money for promotion of new public domain,
but new international legislation tends to reduce it infringing interests of developing
countries. Happily in spite of this struggle public domain keeps their position. And
16
Historical Development of the Public Domain
the main task of the modern information society is to find equilibrium between public
and private interests in this sphere. I suppose that eminent domain of intellectual
property for the welfare of society can be good solution of this problem.
Bibliography
Primary sources:
1. Doha
WTO
Ministerial
2001:
Ministerial
Declaration,
2001,
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm
2. Recommendation concerning the Promotion and Use of Multilingualism and
Universal Access to Cyberspace adopted by the UNESCO General Conference
in
2003
(32nd
session),
http://portal.unesco.org/ci/en/ev.php-
URL_ID=13475&URL_DO=DO_TOPIC&URL_SECTION=201.html
3. The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994,
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
4. The Berne Convention for the Protection of Literary and Artistic Works, 1886,
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
5. The Paris Convention for the Protection of Industrial Property, 1883,
http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html
6. The Statute of Anne, http://www.copyrighthistory.com/anne.html
7. WSIS Outcome Documents – December 2005, the Geneva Declaration of
Principles, http://www.itu.int/wsis/outcome/booklet.pdf.
8. WSIS Outcome Documents – December 2005, the Geneva Plan of Action,
http://www.itu.int/wsis/outcome/booklet.pdf.
Secondary Sources:
9. Adkisson, Richard V. “Intellectual Property and Eminent Domain: If Ever the
Twain Shall Meet”, Journal of Economic Issues, Vol.36, №1, (Mar., 2002).
17
Historical Development of the Public Domain
10. Epstein, Stephan R. “Property Rights to Technical Knowledge in Premodern
Europe, 1300-1800”, The American Economic Review, Vol.94, №2 (May,
2004).
11. Evenson, R.E.; Petrnam, Jonathan D. “Institutional Change in Intellectual
Property Rights”, American Journal of Agricultural Economics, Vol.69, №2
(May, 1987).
12. Hesse, Carla. “The Rise of Intellectual Property, 700 B.C. – A.D. 2000: an Idea
in the Balance”, Daedalus, Vol.131, №2 (Spring, 2002).
13. Kumar, Nagesh. “India, Paris Convention and TRIPS”, Economic and Political
Weekly, Vol.33, №36/37 (September 5-18, 1998).
14. Lipinski, Tomas A. “The Commodification of Information and the Extension
of Proprietary Rights into the Public Domain: Recent Legal (case and other)
Developments in the US”, Journal of Business Ethics, Vol.22, №1, Ethics of
Information and Communication Technology (Oct., 1999).
15. Matthews, Duncan. Globalising Intellectual Property: The TRIPS Agreement
(London: Routlegde, 2002).
16. McCalman, Phillip. “Who Enjoys “TRIPs” Abroad? An Empirical Analysis of
Intellectual Property Rights in the Uruguay Round”, The Canadian Journal of
Economics, Vol.38, №2 (May, 2005).
17. Mergers, Robert P. “A New Dynamism in the Public Domain”, The University
of Chicago Law Review, Vol.71, №1 (Winter, 2004).
18. Resnik, D.B. “A Pluralistic Account of Intellectual Property”, Journal of
Business Ethics, Vol.46, №4, (Sep., 2003).
19. Richard, Donald G. “Trade-Related Intellectual Property Rights”, Review of
International Political Economy, Vol.12, №3 (August, 2005).
20. Sell, Susan K. Private Power, Public Law: the Globalization of Intellectual
Property Rights. Cambridge: Cambridge University Press, 2003.
18
Historical Development of the Public Domain
21. Sell, Susan; May, Christopher. “Moments in Law: Contestation and Settlement
in the History of Intellectual Property”, Review of International Political
Economy, Vol.8, №3 (Autumn, 2001).
22.Uhlir, Paul F. Policy Guidelines for the Development and Promotion of
Governmental Public Domain Information. Paris: UNESCO, 2004.
23. Wayland, Francis. The Elements of Moral Science (London: The religious tract
society, 1835).
24.Wunderlich, Gene. “Property Rights and Information”, Annals of the American
Academy of Political and Social Science, Vol. 412, The Information Revolution
(Mar., 1974).
19
Historical Development of the Public Domain
Application
Copyright and Related Rights: Comparative Analysis
Berne Convention
Term
of Art.7 – 50 years,
protection
Information
that is out of
protection
TRIPS
Art. 12 – 50 years
The countries of the Union may grant a term of protection in excess of
those provided by the preceding paragraphs;
Those countries of the Union bound by the Rome Act of this Convention
which grant, in their national legislation in force at the time of signature of
the present Act, shorter terms of protection than those provided for in the
preceding paragraphs shall have the right to maintain such terms when
ratifying or acceding to the present Act;
In any case, the term shall be governed by the legislation of the country
where protection is claimed; however, unless the legislation of that
country otherwise provides, the term shall not exceed the term fixed in
the country of origin of the work.
Art.1 - It shall, however, be a matter for legislation in the countries of Art.9
the Union to prescribe that works in general or any specified categories of
works shall not be protected unless they have been fixed in some
material form;
It shall be a matter for legislation in the countries of the Union to
determine the protection to be granted to official texts of a legislative,
administrative and legal nature, and to official translations of such texts;
The protection of this Convention shall not apply to news of the day or to
miscellaneous facts having the character of mere items of press
information.
Art.2bis - political speeches and speeches delivered in the course of
legal proceedings;
lectures, addresses and other works of the same nature which are
delivered in public.
Art.10 -
work which has already been lawfully made available to the
public; literary or artistic works by way of illustration in publications,
broadcasts or sound or visual recordings for teaching, provided such
utilization is compatible with fair practice.
Art.9 -
It shall be a matter for legislation in the countries of the Union
to permit the reproduction of such works in certain special cases,
provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author.
Art.10bis -
reproduction by the press, the broadcasting or the
communication to the public by wire of articles published in newspapers
or periodicals on current economic, political or religious topics, and of
broadcast works of the same character.
Art.18 - This Convention shall apply to all works which, at the moment
of its coming into force, have not yet fallen into the public domain in the
country of origin through the expiry of the term of protection.
If, however, through the expiry of the term of protection which was
previously granted, a work has fallen into the public domain of the country
where protection is claimed, that work shall not be protected anew.
- Copyright
protection shall extend to
expressions and not to
ideas,
procedures,
methods of operation or
mathematical concepts
as such.
20
Historical Development of the Public Domain
Another Institutions of Intellectual Property: Comparative Analysis
Paris Convention
The term of protection was
not established
Art.5 - Each country of the Union shall
have the right to take legislative measures
providing for the grant of compulsory
licenses to prevent the abuses which might
result from the exercise of the exclusive
rights conferred by the patent, for example,
failure to work.
Forfeiture of the patent shall not be
provided for except in cases where the
grant of compulsory licenses would not
have been sufficient to prevent the said
abuses. No proceedings for the forfeiture
or revocation of a patent may be instituted
before the expiration of two years from the
grant of the first compulsory license.
A compulsory license may not be applied
for on the ground of failure to work or
insufficient working before the expiration of
a period of four years from the date of filing
of the patent application or three years
from the date of the grant of the patent,
whichever period expires last; it shall be
refused if the patentee justifies his inaction
by legitimate reasons. Such a compulsory
license shall be non-exclusive and shall
not be transferable, even in the form of the
grant of a sub-license, except with that part
of the enterprise or goodwill which exploits
such license.
The protection of industrial designs shall
not, under any circumstance, be subject to
any forfeiture, either by reason of failure to
work or by reason of the importation of
articles corresponding to those which are
protected.
If, in any country, use of the registered
mark is compulsory, the registration may
be cancelled only after a reasonable
period, and then only if the person
concerned does not justify his inaction.
Use of a trademark by the proprietor in a
form differing in elements which do not
alter the distinctive character of the mark in
the form in which it was registered in one
of the countries of the Union shall not
entail invalidation of the registration and
shall not diminish the protection granted to
the mark.
Concurrent use of the same mark on
identical or similar goods by industrial or
commercial establishments considered as
co-proprietors of the mark according to the
provisions of the domestic law of the
country where protection is claimed shall
Object
Trademarks
TRIPS
Art.15 -
Members may make registrability
depend on use. However, actual use of a trademark
shall not be a condition for filing an application for
registration. An application shall not be refused
solely on the ground that intended use has not taken
place before the expiry of a period of three years
from the date of application.
Art.17 -
Members may provide limited
exceptions to the rights conferred by a trademark,
such as fair use of descriptive terms, provided that
such exceptions take account of the legitimate
interests of the owner of the trademark and of third
parties.
Art.18 -
Initial registration, and each renewal of
registration, of a trademark shall be for a term of no
less than seven years. The registration of a
trademark shall be renewable indefinitely.
Art.19 -
If use is required to maintain a
registration, the registration may be cancelled only
after an uninterrupted period of at least three years
of non-use, unless valid reasons based on the
existence of obstacles to such use are shown by the
trademark
owner.
Circumstances
arising
independently of the will of the owner of the
trademark which constitute an obstacle to the use of
the trademark, such as import restrictions on or
other government requirements for goods or
services protected by the trademark, shall be
recognized as valid reasons for non-use.
21
Historical Development of the Public Domain
not prevent registration or diminish in any
way the protection granted to the said
mark in any country of the Union, provided
that such use does not result in misleading
the public and is not contrary to the public
interest.
No indication or mention of the patent, of
the utility model, of the registration of the
trademark, or of the deposit of the
industrial design, shall be required upon
the goods as a condition of recognition of
the right to protection.
Industrial
Designs
Patents for
inventions
Art.26 -
Members may provide limited
exceptions to the protection of industrial designs,
provided that such exceptions do not unreasonably
conflict with the normal exploitation of protected
industrial designs and do not unreasonably prejudice
the legitimate interests of the owner of the protected
design, taking account of the legitimate interests of
third parties.
Art.27 - Members may exclude from patentability
inventions, the prevention within their territory of the
commercial exploitation of which is necessary to
protect ordre public or morality, including to protect
human, animal or plant life or health or to avoid
serious prejudice to the environment, provided that
such exclusion is not made merely because the
exploitation is prohibited by their law.
Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods
for the treatment of humans or animals;
(b) plants and animals other than microorganisms, and essentially biological processes for
the production of plants or animals other than nonbiological and microbiological processes. However,
Members shall provide for the protection of plant
varieties
either
by
patents
or
by
an
effectivesui generis system or by any combination
thereof. The provisions of this subparagraph shall be
reviewed four years after the date of entry into force
of the WTO Agreement.
Art.30 -
Members may provide limited
exceptions to the exclusive rights conferred by a
patent, provided that such exceptions do not
unreasonably conflict with a normal exploitation of
the patent and do not unreasonably prejudice the
legitimate interests of the patent owner, taking
account of the legitimate interests of third parties.
Art.31 -
Where the law of a Member allows for
other use of the subject matter of a patent without
the authorization of the right holder, including use by
the government or third parties authorized by the
government, the following provisions shall be
respected:
(a) authorization of such use shall be considered
on its individual merits;
(b) such use may only be permitted if, prior to
such use, the proposed user has made efforts to
obtain authorization from the right holder on
reasonable commercial terms and conditions and
22
Historical Development of the Public Domain
that such efforts have not been successful within a
reasonable period of time. This requirement may be
waived by a Member in the case of a national
emergency or other circumstances of extreme
urgency or in cases of public non-commercial use. In
situations of national emergency or other
circumstances of extreme urgency, the right holder
shall, nevertheless, be notified as soon as
reasonably practicable. In the case of public noncommercial use, where the government or
contractor, without making a patent search, knows
or has demonstrable grounds to know that a valid
patent is or will be used by or for the government,
the right holder shall be informed promptly;
(c) the scope and duration of such use shall be
limited to the purpose for which it was authorized,
and in the case of semi-conductor technology shall
only be for public non-commercial use or to remedy
a practice determined after judicial or administrative
process to be anti-competitive;
(d) such use shall be non-exclusive;
(e) such use shall be non-assignable, except with
that part of the enterprise or goodwill which enjoys
such use;
(f) any
such
use
shall
be
authorized
predominantly for the supply of the domestic market
of the Member authorizing such use;
(g) authorization for such use shall be liable,
subject to adequate protection of the legitimate
interests of the persons so authorized, to be
terminated if and when the circumstances which led
to it cease to exist and are unlikely to recur. The
competent authority shall have the authority to
review, upon motivated request, the continued
existence of these circumstances;
(h) the right holder shall be paid adequate
remuneration in the circumstances of each case,
taking into account the economic value of the
authorization;
(i) the legal validity of any decision relating to the
authorization of such use shall be subject to judicial
review or other independent review by a distinct
higher authority in that Member;
(j) any decision relating to the remuneration
provided in respect of such use shall be subject to
judicial review or other independent review by a
distinct higher authority in that Member;
(k) Members are not obliged to apply the
conditions set forth in subparagraphs (b) and (f)
where such use is permitted to remedy a practice
determined after judicial or administrative process to
be anti-competitive. The need to correct anticompetitive practices may be taken into account in
determining the amount of remuneration in such
cases. Competent authorities shall have the
authority to refuse termination of authorization if and
when the conditions which led to such authorization
are likely to recur;
(l) where such use is authorized to permit the
exploitation of a patent (“the second patent”) which
cannot be exploited without infringing another patent
(“the first patent”), the following additional conditions
shall apply:
(i) the invention claimed in the second patent
shall involve an important technical advance of
considerable economic significance in relation to the
invention claimed in the first patent;
(ii) the owner of the first patent shall be entitled
23
Historical Development of the Public Domain
to a cross-licence on reasonable terms to use the
invention claimed in the second patent; and
(iii) the use authorized in respect of the first
patent shall be non-assignable except with the
assignment of the second patent.
Art.33 -
The term of protection available shall
not end before the expiration of a period of twenty
years counted from the filing date.
Layout
Designs of
Integrated
Circuits
Art.37 -
Notwithstanding Article 36, no Member
shall consider unlawful the performance of any of
the acts referred to in that Article in respect of an
integrated circuit incorporating an unlawfully
reproduced layout-design or any article incorporating
such an integrated circuit where the person
performing or ordering such acts did not know and
had no reasonable ground to know, when acquiring
the integrated circuit or article incorporating such an
integrated circuit, that it incorporated an unlawfully
reproduced layout-design. Members shall provide
that, after the time that such person has received
sufficient notice that the layout-design was
unlawfully reproduced, that person may perform any
of the acts with respect to the stock on hand or
ordered before such time, but shall be liable to pay
to the right holder a sum equivalent to a reasonable
royalty such as would be payable under a freely
negotiated licence in respect of such a layoutdesign.
The conditions set out in subparagraphs (a) through
(k) of Article 31 shall apply mutatis mutandis in the
event of any non-voluntary licensing of a layoutdesign or of its use by or for the government without
the authorization of the right holder.
Art.38 - In
Members requiring registration as a
condition of protection, the term of protection of
layout-designs shall not end before the expiration of
a period of 10 years counted from the date of filing
an application for registration or from the first
commercial exploitation wherever in the world it
occurs.
2. In Members not requiring registration as a
condition for protection, layout-designs shall be
protected for a term of no less than 10 years from
the date of the first commercial exploitation
wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member
may provide that protection shall lapse 15 years
after the creation of the layout-design