The need for an International Convention on Public Domain

Intellectual property law (copyright, software and patents) evolved to protect the financial exploitation rights of intellectual property creators and developers.

Intellectual property owners are entitled to benefit financially when third parties use their property during established protected periods.

Following these periods, their properties are no longer protected, become public domain and may as such be used by anyone, anywhere in the world.

In addition to local laws, International Conventions such as the Bern, Paris and Rome conventions which deal respectively with copyright, patents, and the related rights of recording companies, performers and broadcasters; were designed to synchronize the laws of different countries.

The rise of global interest in intellectual property rights can be gauged by the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the Uruguay Round, which introduced intellectual property rules into the multilateral trading system for the first time; and the World Intellectual Property Organization (WIPO) with a mandate to administer intellectual property matters recognized by the member States. WIPO currently has 183 member states and administers 23 international treaties dealing with different aspects of intellectual property protection.

In 1972 Unesco adopted the Convention Concerning the Protection of the World Cultural and Natural Heritage seeking to safeguard and disseminate humanity’s intellectual heritage. Broadening its scope, more than thirty years later it adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions which will succeed it.

Still, no national nor multilateral instruments regulate in depth the details of the public domain. All countries public domain assets make up humanity’s intellectual heritage which can already be freely used by citizens the world over, and should as such be available to them.

Public domain works, if made easily accessible by governments, public or even private institutions, would give all of the world’s peoples infinite access the entire wealth of mankind’s intellectual heritage.
Such access to materials and inventions in the public domain would be important in transferring technology to developing countries.

Unhindered public access to the output of human intellect, to the wealth of mankind’s knowledge will unleash an unprecedented cultural exchange.

Cultural enrichment of developing countries’ citizens will flourish as access to culture is a basic human right. This is actually the great difference between rich and developed countries, and the developing ones, the great chasm. In developing countries few have access to culture, to education, and thus to intellectual output. In developed countries most people do.

Public domain works are very poorly treated; one could say it is covered by neither domestic nor international law. Could it be for lack for capitalistic interest? Or could it be due to the lack of interest by large corporations?

The public domain ought to be treated in greater detail by domestic laws, thus priming a legislative movement leading to an international convention setting the guidelines for making it readily available.

Denying the regulation and the effective availability of the public domain is tantamount to keeping millions or billions of people with restricted access to culture. It keeps people and countries in ignorance and even poverty.

Intellectual property protection, protection of citizens and their right to access information, the safekeeping and dissemination of this human intellectual heritage must be balanced against fair compensation for the use of these assets which is already properly regulated internationally.

This theme calls for urgent discussion at the headquarters of international bodies such as UNESCO, WIPO and WTO – which are empowered to lead the global regulation of the public domain, as well as in all of these organizations’ member countries, so that this intellectual wealth becomes readily accessible to all, thus contributing to a reduction in cultural and economic inequalities.

Dias, Maurício Cozer
Msc. in Intellectual Property Rights
cozerdiasmcd@yahoo.com.br