WIPO: The Public Domain
This is a response to WIPO's online discussion, ``Theme Three: The public domain and open access models of information creation: at odds with the intellectual property system or enabled by it?''
General Notes
Some general thoughts while reading the introductory text to the theme. Right away, bias quickly appears:
wipo
The public domain includes works and objects of related rights that can be used and exploited by everyone without authorization [..]
The term "exploited" implies that there is an exploiter and an exploitee — but by the very definition of "public domain" this is impossible. A bias is already apparent in the text: that one has "rights" to creative work and that someone is necessarily exploited by the third-party use of creative works and that "authorization" is naturally and inevitably required to use a creative work created by someone else. These are all presumptions of the current copyright, trademark and patent systems. Such presumptions are commingled with our creation of these systems.
wipo
Of course, all rights reserved is a legitimate choice for authors to make [..]
Again, the same bias: this is only a "legitimate choice" given the existence of a legal framework under which one may make such a choice: a copyright regime. Without such a regime, no such choice is even possible, so its legitimacy is irrelevant.
General Comments
WIPO presumes a copyright, patent and/or trademark system, as per the above. This, of course, makes sense, since that is the only reason they exist and therefore they will always be interested in making some sort of system.
Lets consider, however, what humans have been like historically. Before we thought about creating copyrights, this whole discussion would be moot: all knowledge was public domain, and the whole litany of "concerns" about business models, moral rights and so forth so painstakingly outlined in the WIPO's article would launch totally and completely over any pre-1700 person's head; they would simply go on sharing knowledge (largely orally) with one another as they have for millennia.
Only in the space of the last couple of hundred years have we started "clamping down" on the perceived "problem" of sharing knowledge. Literally billions of dollars are now spent annually paying people in suits to argue about who owns what precise words, sounds and bits of knowledge. Some people even own silence! [1] People not old enough to legally drink are being put in jail for doing something which is natural, fun, rewarding and part of our nature: sharing knowledge. Millions are spent "educating" us about the dangers of sharing.
[1] -- No, I'm not kidding: see here.
We have, in other words, locked up all our knowledge; we are permitted to see it, but not permitted to touch — and certainly not permitted to do something dirty like change it or tell our friends about what we've seen.
No sir, that would be wrong! Why? Well, we've spent just over 200 years making up something called "Modern copyright law" and "the Modern patent system" which tell us just precisely what we're allowed to do (and when) with various types of so-called "creative work".
Now, with the weird surrealness I've come to expect from modern political discussions, we're asked a series of questions by WIPO — part of the "modern copyright system" we've set up to hunt down and punish all those evil people who are sharing knowledge — which totally and completely miss the point.
Nevertheless, I'm going to be indulgent and answer them:
What is the \u201cpublic domain\u201d, how is it created and constituted, and what is its relevance to the Information Society?
Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?
These questions perfectly illustrate the point-missing I just mentioned: the "public domain" is nothing different from the situation which existed before we set up copyright and patent systems: it is the default "system" humans have used for millennia and needs no "constituting". Human knowledge will exist and will be shared wherever there are groups of humans.
The "public domain" exists despite our so-called "intellectual property" systems and is rapidly being eliminated and demonized by them. The public domain — the free sharing of human knowledge — should be celebrated by the best means possible: the elimination of all "intellectual property" systems.
Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?
What business of the WIPO's is that?
In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?
Yes.
This question is hopelessly leading, of course, but has a false presumption: that we indeed have "unprecedented" access to information. While it is certainly true that we have access to a far, far greater reserve of public domain information than ever before, this is only true because we have a vastly greater total amount of information than ever before. As a percentage, however, freely sharable information is a tiny fraction of modern knowledge. Nothing, for example, which was produced after 1924 is off copyright in the United States. Nothing! Of course, some tiny fraction of this total has been explicitly released from the bounds of copyright (by various methods outlined in WIPOs article), but it is still bound by the weirdness of copyright laws.
This is an unprecedented situation in human affairs. We've never intentionally locked away this much knowledge.
Are there classes of information for which open access models should be mandatory, and others where they should be excluded?
In all cases, open access models should be mandatory. (In other words, we should heed our own lessons to kinder-garden-attending children and force ourselves to share.)
Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?
No.
Is the IP system incompatible with, or in support of, open source software principles?
It is neither. The latter exists despite the former and, in my option, because of our overwhelming desire to share knowledge.
Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?
Almost certainly, I imagine. So what? What does this have to do with policy decisions and why should I — a non-IP-lawyer — have any valuable input here?