On the 27th of October, Lionel Maurel (@Calimaq) published in his blog a long list of suggestions that would help preserve and promote the public domain in France. In view of the Ministry of Culture’s proposal to enact a new law concerning French cultural heritage, Lionel advocates for the adoption of a law that would also account for the public domain.

His proposed legal reform is driven by two complementary objectives:

The first objective is defensive, give that there is a urge to protect the public domain in the digital age. The public domain has been subject to a slow erosion over the course of the last century. This is mainly due to the constant extension of the copyright term and the establishment of new rights, but not only. Public-private partnerships for the digitization of the cultural heritage is a source of concern insofar as private firms are granted exclusive rights over digitized copies. Indeed, while digitization should be an opportunity to broadly disseminate public domain works, cultural institutions (libraries, museums, archives) are increasingly affecting the integrity of the public domain by means of specific techniques intended to create new layers of rights over the digital copies of these works. For these reasons, if we want to preserve the public domain in the twenty-first century, it is essential to protect it through the law. We can no longer let this fundamental issue be exclusively dealt with by cultural institutions and the communities they belong to, since those are often ill-equipped to address the issue and might even be tempted to make profits by commodifying the public domain. The State must ensure that the public domain is preserved for the benefit of all citizens, who shall all be entitled to freely access their own cultural heritage and create new works based on prior works.

The other objective is more of an offensive one, in that it suggests a positive reform of copyright law. Thus far, the majority of reform proposals have only been concerned with the issue of piracy and the legitimacy of non-commercial file sharing. Yet, it is just as important to fight on another, complementary front, as regards the positive recognition of the public domain.

The following proposal has been inspired by several sources: Communia’s Manifesto for the public domain, the reform proposals from La Quadrature du Net, the Open Glam report on opening up data and cultural content and the report of the Committee of Wise Men on the European public-private partnerships. Interesting suggestions also came from the report recently published by the Terra Nova Foundation, which has devoted an entire section to the issue of the public domain in the digital age.

It has to be noted, however, that this proposal only concerns French legislation and is not directed towards reforming European law. Hence, it does not cover essential aspects which are crucial for the public domain – such as reducing the duration of copyright and neighboring rights – but that could only be implemented at the European level. Lionel thus proposes a list of twenty-six points for potential law reform, drawn around seven different objectives:

I) To explicitly recognize the notion of the public domain in French Intellectual Property Code

1. Clarifying the definition of “work of authorship” by endorsing the criteria of originality and fixation directly into the law.

2. Explicitly including the notion of “public domain” into the provision on the copyright term.

II) To simplify the public domain regime by harmonizing the terms of protection.

1. Removing the additional term of protection to compensate for the war period.

2. Removing the 30 years extension for authors who “died for France”

3. Eliminating the special regime for posthumous works

4. Simplifying the international application of copyright law

III) To limit the scope of the copyright

1. Precluding protection for works’ titles

2. Introducing the distinction between “useful works” and “works of art” into French law

3. Limiting the scope of moral rights to the life of the author

4. Preserving the public domain status of works incorporated into composite works

5. Keeping public domain works freely reusable in the case of simple reprints

6. Establishing a “three-step test in reverse” to prevent future infringements of the public domain

IV) To prevent attempts to the integrity of the public domain

1. Ensuring that the faithful reproduction of two-dimensional works in the public domain are also in the public domain

2. Preventing the commodification of the public domain as a result of the sui-generis rights on databases.

3. Precluding limitations on the reuse of public domain works according to the French law on public sector information.

4. Avoiding confusion between the public domain within the meaning of intellectual property and the public domain in the sense of public property.

5. Prohibiting the use of contractual means to limit the reuse of public domain works.

6. Prohibiting the use of DRM to constrain the reuse of public domain works.

7. Dissuade cultural institutions from preventing the reproductions of public domain works

V) To strictly regulate public-private partnerships for the digitization of the public domain

1. Limiting the exclusive rights granted to private partners and introducing the recommendations of the European Committee of Wise Men into French law

VI) To expand the public domain with recent works

1. Facilitating the voluntary donation of works in the public domain by their authors

2. Ensuring that all works produced by public officials in the exercise of their mission automatically enter the public domain

VII) To create mechanisms to further enact the public domain

1. Establishing penalties for infringements on the integrity of the public domain

2. Encouraging the CADA to provide advices on the reuse of public domain works

3. Creating a national registry of public domain works

4. Ensuring that metadata concerning public domain works are also in the public domain

A more detailed analysis of these points can be found here (only for french speakers).

Lionel concludes with a dream: “that France, the country of Beaumarchais and the patrie of author’s rights, also becomes the first country to pass a law for the public domain!”

We hope that these propositions, although specifically oriented towards French legislation, could be an inspiration for other people to undertake a similar analysis on how the law could contribute to the preservation and promotion of the public domain in their own country !