Despite the abstract definition, copyright law has been used in a very flexible way, covers almost everything around us. This kind of monopolistic control on works of literature works has many detrimental effects. Above all, it is going against the spread of scholarship. The copyright will increase the price of the editions of works, a copyright owner can prevent the development of alternative editions of the original text, he can also refuse to license quotation by users of whom he disapprove These activities will inhibit the public’s ability to communicate. Therefore we need free and dynamic conditions to satisfy the public interest, to spread the scholarship that is what the public domain can do. The public domain serves the public interest by enabling free access to scientific research, education, artistic expression, imitation and creative adaptation, thus enhancing creativity, self-expression and a productive cultural and artistic life. Theoretically the value of public domain just lies in its free availability. It is strongly arguable that the public interest in free access to significant works outweighs the obligation to enforce copyright in the works. The significance of public domain is well stated by Litman, that:
“Because we have a public domain, we can permit authors to avoid the harsh light of a genuine search for provenance, and thus maintain the illusion that their works are indeed their own creations. We can tolerate the grant of overbroad and overlapping deeds through the expedient assumption that each author took her raw material from the commons, rather than from the property named in prior deeds.”
B. The Public Domain
It is difficult to determine precisely what is in the public domain in a theoretical way although we are all users of it. One of the commonly recognized aspects of the public domain is that it represents a body of works that the public is free to use. As to the intellectual property law the "public domain" is traditionally supposed to consist of intangible goods that are not subject to exclusive intellectual property rights and which are freely available to be used or exploited by any person. This definition is in the negative way that public domain is consisting of those "intangible goods" not subject to intellectual property rights. It is simply whatever left over after various tests of legal protection are taken into account. The essence of this approach is that nobody can restrict the use of public domain knowledge by relying on the rules of intellectual property law.
Furthermore, the nature of the concept decides the relationship between the scope of copyrights and the size of the public domain is unclear. Prof. Jessica Litman said that the fundamental concept of authorship in the copyright law is "equivocal," the definition of "originality" in copyright is "a conceit," just a "legal fiction," "a poor substitute for tangible boundaries among parcels of intellectual property because it is inherently unascertainable." Prof. Patterson and Lindberg had the similar argument that many of the basic principles of copyright protection are fictions or fallacies that have led to an overexpansion of federal and state rights. In fact, any work of authorship actually draws upon dozens or hundreds of other works, while any work is necessarily a recombination or transformation of the former work, maybe no work is totally original. The word ‘original’ is just a legal presumption that in order to make the court easier and more efficient; the scope of copyright is unclear, as a result, when the law facilitate distribute the property to the respective domains of public resource and private property, it is unable to tell the certain border which separates the respective domains of communal resource and private property.
A work is not protected by the copyright is not automatically be part of the public domain, it maybe protected by other statute. Thinking of every limitation upon the exclusive rights of copyright will also create a limited public domain. Because of the expansion of the copyright law threatened the healthy public domain, several authors have suggested creating a "theory of the public domain," nevertheless maybe it just a harder work, for they even could not articulate exactly what the parameters might be.
Prof. Lange said that the copyright law itself has evolved a proper balance between protection and nonprotection, it seems to be in a state of reasonable equilibrium, it is the creation of various new theories of protection which made the copyright keep on expanding, the portion which are under protection is expanded, at the same time, it is "Remarkably little direct attention has been paid to the public domain in recent years." People are used to caring about what they are willing to protect, when a new work produced, people are anxious to put it under control, thus always ignore those free from protection. The portion which is not under protection is remaining the same or even reduced, the proper balance in the original copyright law will surly be broke.
If we tried to find in the legal literature, it is almost no one there to protect the public domain, and the copyright scholars even seldom pay any attention to it. So as Prof. Lange suggests, we must identify the public domain by their "low protectionist bias." Justice Kaplan concerned about the "excessive reification" of copyright principles, such as the “property law analog” or the "cult of originality." But reification of the public domain is not seems a good idea for such a theory will limit the domain itself. Later Prof. Litman defines the public domain as the "commons that includes those aspects of copyrighted works which copyright does not protect", it does not seem to make any progress, this negative definition based upon what is not protected by other legislation. Once the scope of the copyright expanded, (if there is any clear scope), the public domain will reduce without any doubt. As to Patterson and Lindberg, they do not suggest a "theory" of the public domain, but argue for a cautious interpretation of the scope of copyright law based upon their reading of history and policy. These entire proposals make the public domain become a more complex and difficult area, no idea for exactly what is the parameters, moreover, people even more confused. It seems too hard to have a consolidated theory, just like Prof. Litman concludes that "This hodgepodge of unprotectible matter was without overarching justification then, and it remains so today."
Moreover as we can see in the following part, the three different categories which will automatically fall in the public domain, that is (1) Public domain through expiration of copyright; (2) Public domain through forfeiture or unclaimed of copyright; (3) Works categorically excluded from copyright. Each of them is being treated by different legal theories, or by different legal standards, or is justified by different public policies, so the illusion to create a general theory of public domain is unrealistic. It is better to focus on the fact of each cases, it is no point to compare the scenario in each different case.
Before looking at each of the three categories, we should bear in mind that with each extension of the federal statute into new subject matter, there has been a diminution in works that are automatically considered as part of the public domain. As we can see below, it is clearly represented a continual expansion of protected rights and a decrease in the works that are part of the public domain. The original Statute of Anne had been characterized as creating of a public domain by limiting the duration of protected works and requiring for formalities, but as the law developed, the history of copyright law could be looked as a gradual expansion of the subject matter and the rights granted to owners. The extension and further extension of the private right in copyright “pluck the works which firmly rooted in the public domain back to the private ownership”.
C. Categories of public domain
1. Public Domain through Expiration of Copyright
The protect works of authorship has a time limited, once the intellectual property for which the term of protection has run its full duration, the collection of works in which copyright has expired is unavoidable enter into the concept of public domain. In fact, it just a small portion.
The justification for copyright is “a social contract, in which an author is granted exclusive rights in exchange for eventual dedication to the public domain”. The particular case is when the author is dead and the copyright has expired the limited time, the works is public domain, the rights of copyright are owned by irrelevant person. Nevertheless, since no specific regulation for how long the duration could be, in the name of the best interests of the deceased author, the duration of copyright protection is extended to an incredibly situation which in many cases the time last for a considerable seventy years after the death of the author of the work, nevertheless will the author be enhanced any incentive to create just because their work will be protected for many decades after his death? This reason for extension seems lack of persuasion and too pale. The very important result for the extension is to limit the scope of the public domain without question.
Under the Copyright Act 1911 and the Copyright Act 1956 unpublished works were protected in perpetuity. The following CPDA codified all pre-existing copyright rules, abolished potentially perpetual copyright, and ruled that the unpublished works the author of which had already died, the protection has a finite term of protection of 50 years from the end of the year in which the Act came into force. Under the following Copyright and Related Rights Regulations 1996, the protection for a previously unpublished work could potentially be extended for a further 25 years following the end of the copyright term. As a result, in some special circumstance the copyright will last for hundreds of years.
It is long been argued the right of first publication of a work is an essential component of the moral right of an author. Therefore, if copyright law system were being designed ab initio, it is obviously little reason for introducing especially long periods of protection for works unpublished in an author's lifetime.
In the American cop It is also sometimes argued that the right of first publication of a work is an essential component of the moral right of an author, the duration has been extended from a term of 14 years in the copyright act of 1790, (assuming that all formalities were met, and subject to renewal for another 14 years) to a term of the life of the author plus 50 years in the 1976 Act. Furthermore the Copyright Office recently even announced considering an extension of copyright to life plus 70 years. In such especially long period of copyright, the author’s right is almost perpetual; he could actually enjoy the economic value as a whole, the public domain thus almost meaningless.
Such long duration may have a detrimental impact on literary, and other, forms of scholarship. By the time when the copyright works finally enter into the public domain after 50 or 60 years following it was made, it is pretty possible that they are of little practical value, because nowadays, the development in scientific discovery, innovation and technological improvement in the industrial society is too rapid to follow. Will a computer program of great economic value after 50 years? Almost everyone will say ‘no’ without any doubt. It is true much knowledge may be of little rivalrousness in a competitive market, even long before the expiry of the term of protection.
The interest in unfettered enjoyment of private property is often outweighed by powerful competing public interests. But if the author has dead many decades, will it be of any point for the dead people enjoy any right? In this kind of circumstance, the public interest in free access to significant historical works outweighs the obligation to enforce copyright.
If there is a theory of the public domain, it could provide some basic idea for the limitation, but still be of little help to say about what exactly the duration should be.
Public Domain through Forfeiture or unclaimed of Copyright
Sometimes copyrightable works is failed to qualify for protection, or lose that protection, on the ground failure to comply with technical formalities which leads to the intellectual property forfeited, this constitute the significant part for public domain. Any noncompliance with those formalities will leads to loss of the owner's copyright. But the requirements for obtaining and retaining federal copyright protection is eliminated in recent years, meanwhile the copyright subject matter are expanding very fast.
In the UK, the 1911 Copyright Act abandoned all requirements concerning any formalities. It came into existence when a work is fixated or recorded in any permanent way. Infringement was also expanded to include translation and adaptation as well as reproductions ‘in a material form’. Furthermore, the 1956 Copyright Act extend the scope of copyright to encompass sound and sound television broadcasts, as well as typographical formats of published editions. The right given to the copyright owners were significantly expanded in the 1988 Act, by the introduction of a distribution right and a rental right, and a new category of non-assignable ‘moral rights’ for authors, the combination of performers’ rights, the creation of the unregistered design right, etc.
In the American, in the year of 1988 the requirements for obtaining and retaining federal copyright protection are virtually eliminated. “People don't bother asking if copyright exists in a work: it does. Don't bother to claim the status of an innocent infringer: there are no innocent infringers.” The work is fully protected by copyright.
there is a distinction between the "forfeiture" of copyright, through failure to meet statutory formalities, and "abandonment" of copyright by way of voluntary relinquishment of a known right. In one sense copyright is property, and any abolition of such interests is expropriation, under the ECHR, people are free from expropriation. And an owner is free to dispose of personal property as he will, including by way of abandonment.
Thus an important component of the public domain has now been eliminated.
Works Categorically Excluded from Copyright
One portion of the public domain has consisted of those intangible goods that fall outside the scope of protection of intellectual property laws in the first instance.
There are several limitations upon the scope of copyright protection, those defence are being viewed as a counterbalance to the exclusive rights conferred on the copyright owner, in particular, the recognition of fair use doctrine, which permit the public make at least some use of the work within the meaning of fair use. Edward Samuels stated that the existence of the limitation proves the extent of the expansion. Because at the beginning it is no necessary to have limitation upon the copy right, because the copyright only protect a few works, any use other than these works are valid, only when the copyright expand to cover the “any other use”, did we need the limitation. Thus the defence do not create a separate "public domain." They just show the reorganization of public interest even in copyrighted works,
Fair dealing defence:
In order to keep the rights balance between the copyright owner and the social or culturally beneficial, the law allow people to use the copyright work without interfere the copyright owner’s commercial exploitation of the work. (S 28-S 76)
The ‘purpose’ behind the alleged infringer is fairly important in using the fair dealing defence. If the purpose is to produce a commercially competitive product, you can not use such a defence to escape. It is fair dealing for the purpose of research or private study; for the purpose of criticism or review; reporting current events; Article 5 of the Information Society Directive relating to the internet, e-commerce, and digital technology. (2001/29/EC).
There are other circumstances that you can use the copyright work without permission.
a. Using an insubstantial part. According to S 16 of the Copyright Designs and Patent Act 1988 (CDPA) using of another’s copyright work is permissible, if you doing such an infringing act only operate in relation ‘to the work as a whole or an substantial part of it’. The word ‘substantial part’ means the owner can not refuse the minor borrowing of his copyright work, yet you can not you can not copy any more than a substantial part at the same time.
The line draw between ‘substantial amount’ and ‘insubstantial amount’ is turning upon a qualitative assessment, and nothing about the quantity. In Sillitoe v. McGraw-Hill Book Co (UK) Ltd Mervyn Davies QC said that ‘substantial is a question of fact and degree determined by reference not only to the amount of work reproduced but also to the importance of the parts reproduced’.
In Fact the court is left to the judge fairness in the light of all the circumstances.
b. Independent creation. Copyright is not a monopoly right, in Francis Day & Hunter v. Bron Upjhn LJ pointed that ‘if it is an independent work, then, though identical in every way, there is no infringement.’
c. Public interest
The CDPA sets out that nothing in the legislation ‘affects any rule of law preventing or restricting the enforcement of copyright, on the grounds of public interest or otherwise.’ The common law defence of publication "in the public interest" has recently been sharply curtailed by the Court of Appeal in Hyde Park Residences Ltd v. Yelland.
d. parody;
f. permission for ideas
Some authors have recently recognised the inherent limitations of the negative theory of the public domain. They advocate the need to postulate a positive theory, i.e. a theory that actively defines the characteristics of what is or should be in the public domain.
expansion of copyright law,-----public domain -----balance
the conceptual conflict as to what is capable of being appropriated in the first place.
Prof. Lange, the copyright law itself "is not the most important source of problems in the intellectual property field just now," since, "[w]ith its doubtful premises and its conceptual perplexities, the law of copyright nonetheless . . . seems to be in a state of reasonable equilibrium." Rather, the Principal problems in intellectual property law are to be found instead in a host of other, less well-worked-out, property-equivalent theories which are appearing in sporadic, ad hoc fashion in the literature and . . . in state and federal courts across the country.
the copyright owner's monopoly does not or should not extend.
Krasilovsky identifies what he calls "limited areas of public domain," including "special uses exempted from copyright such as juke box performance of music, church, school and other non-profit performances of music, and mechanical reproduction rights for phonograph records of songs originally recorded before 1909," and in some countries "a special limited public domain in the right to translate."
Change the Concept, negative-positive
A characteristic and unilateral trait of mankind - and one which is fundamental to our understanding of intellectual property - is its obedience to the acquisitive instinct. In the legal concept, there are two separate people can enjoy the fruits of appropriation, the one is the owner and the other is the possessor.
Conclusion:
The continuous spread of intellectual property scope, plus their ever-deepening layer of protection, will combine to hamper industry and initiative by closing off an increasing number of avenues of possibility. The public domain is under threat and diminishing at the moment.
We’d better change the scope of copyright protection. To keep this balance between private property and public domain thus maintains a healthy public domain is an important public policy goal. Find a more effective defence against commodification.
Due to the continual expansion of the scope of intellectual property rights (or so-called "commodification of knowledge") and the decrease in the works that are part of the public domain, the healthy public domain has been damaged. The public interest requires free public access to artistic expression, education and scientific research, etc, which can enhance creativity, self-expression and a productive cultural and artistic life. that is what public domain has; theoretically the value of its contents just lies in its free availability for research, education, imitation and creative adaptation. The public domain notion is commonly regarded as a bulwark against excessive private appropriation of human knowledge. Protection of a "healthy" public domain is then highly developed as a significant public policy goal.
Remmondation:
1. The new statute do not expand to the protection to cover pre-existing unprotected works, leave such works as in the public domain.
2. Those ineligible for copyright were indeed thrust into the public domain.
Limiting rights of appropriation in intangible goods could establish a healthy public domain.
the expansions as being based upon historical mistakes and misunderstandings of legal fictions, it is out of question that legal fictions are one of the great inventions of the common law that allows the law to develop and grow, but using these abstract words will leads to nothing but confuse and could be interpreted in many ways, anyway, as Prof. Wendy Gordon argued that an intellectual property owner's rights should not be interpreted to allow any diminution in the existing the public domain.
including music, sculpture, photographs, computer programs, and architectural works, that simply were not covered in the early law, and the expansion of the scope of protection to include several key exclusive rights, such as the right to derivative works, translations, and performance rights, that were not originally covered by federal copyright law. in the 1960's and 1970's include computer programs as protectable
"such vague rhetoric does little more than adorn the stage on which actual choices must be played out."
For example, to Prof. Lange, the copyright law itself "is not the most important source of problems in the intellectual property field just now," since, "[w]ith its doubtful premises and its conceptual perplexities, the law of copyright nonetheless . . . seems to be in a state of reasonable equilibrium."
Bently.L and Sherman.B, Intellectual Property law, 1st ed., (Oxford University Press, 2001), at p1.
Paul Torremans, Intellectual Property law, 2nd ed., (Butterworths, 1998) at p10
William Van Caenegem, “The public domain: Scientia nullius”, (2002), European Intellectual Property Review
There are three arguments used to support the recognition of intellectual property, natural rights arguments; reward arguments; and incentive arguments, here I support the third one. ----Bently. L and Sherman .B., op.cit at p32
W. R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 4th ed., (Sweet & Maxwell, 1999), at p8.
University Press Ltd v. University Tutorial Press Ltd [1916] 2 Ch. 601 at 608.
William Van Caenegem, supra note 3.
Jonathan Griffiths, “Copyright in the English literature: denying the public domain”, (2000), European Intellectual Property Review
Jessica Litman, “The public domain”, (1990) Emory Law Journal, 965
Edward Samuels, “The public domain in copyright law”, (1993), Journal of the copyright society 137
William Van Caenegem, supra, note 3
Jessica Litman, supre note 9
L. Ray Patterson & Stanley W. Lindberg, “The Nature of Copyright: A Law of Users' Rights”, (1991), and quoted in Edward Samuels, supra note 4.
Sega Ents. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992)
William Van Caenegem, supra, note 3
Edward Samuels, supra note 4.
David Lange, “Recognising public domain”, (1981) Law and Contemporary Problems, 147, at 150.
Lange, supra note 6 at 151 n.20, cites Ralph S. Brown, Jr., Unification: A Cheerful Requiem for Common Law Copyright, 24 U.C.L.A. L.Rev. 1070 (1977);
Edward Samuels, supra note 4.
Jessica Litman, supra note 6.
Edward Samuels, supra note 4.
L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users' Rights (1991)
Jeremy Phillips, “The diminishing domain”, (1996), European Intellectual Property Review
Copyright, Designs and Patents Act 1988, Sched. I, para. 12 (4) (a).
Reg. 16 of the Copyright and Related Rights Regulations 1996 (S.I. 1996 No. 2967)
William Van Caenegem, “The public domain: Scientia nullius”, (2002), European Intellectual Property Review
Jonathan Griffiths, op.cit.
Rexnord, Inc. v. Modern Handling Systems, Inc., 379 F.Supp. 1190, 1199 (D.Del. 1974); Schuchart & Assoc. v. Solo Serve Corp., 220 U.S.P.Q. 170, 183, 1983 WL 1147 at 39 (W.D.Tex. 1983).
Article 1 of the protocol of the ECHR.
See generally Patry, The Fair Use Privilege in Copyright Law (1994) and Goldstein, Copyright's Highway (1994).
ITP v. Time out [1984] FSR 64
William Van Caenegem, op.cit.
Jeremy Phillips, “The diminishing domain”, (1996), European Intellectual Property Review
Edward Samuels, “The public domain in copyright law”, (1993), Journal of the copyright society 137
Jeremy Phillips, “The diminishing domain”, (1996), European Intellectual Property Review
William Van Caenegem, “The public domain: Scientia nullius”, (2002), European Intellectual Property Review
Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, (1993)102 Yale L.J. 1533
Edward Samuels, supra note 4.