Sherman, Brad; Thomas, Julian --- "Introduction" [1998] JlLawInfoSci 1; (1998) 9(1) Journal of Law, Information and Science 5

• Introduction

Introduction

Brad Sherman^[*] & Julian Thomas^[**]

The public domain is a central concept in Anglo-Australian copyright law.

Over time copyright law has developed an array of doctrinal mechanisms—idea-expression; limited duration; exceptions; importation controls; fair dealing; infringement involving qualitative and quantitative guidelines—which attempt to protect the public domain, yet at the same time, promote the interests of copyright owners.

Although the public domain is at the heart of copyright law’s claim to balance public and private interests, it is rarely addressed directly in legal scholarship or in policy debate. When it is considered, the public domain is usually framed in negative terms, as a legal residue drained of positive proprietary rights.

While the notion of the public domain has not attracted much direct attention in Australia, in one way or another it underpins much of the current debates about the future of copyright law. This is particularly the case in relation to new information technologies which have changed the way copyright materials are produced and distributed. Legal systems designed to regulate the movement of physical goods—books, records, videotapes—have been reviewed and modified at length in order to deal with digital networks. New international treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty have been concluded, and others have been proposed. The Commonwealth has responded with the 1997 Digital Agenda discussion paper and a series of wide-ranging proposals for reform, including the 1998 report of the Copyright Law Review Committee on exceptions. These proposals are likely to lead to new legislation in 1999.

One of the great concerns of copyright owners and users is how the various exceptions to the rights of owners will be applied in digital environments. The Berne Convention seeks to protect owners’ ‘normal exploitation’ of a work. What is ‘normal exploitation’ in the digital environment? Both copyright owners and users have demanded simple, fast, efficient means for clearing rights and paying licence fees. A great deal of work has been done in Australia, the United States and Europe on technological systems for managing copyright over networks. Developers often express frustration with the nuances of copyright law. Copyright is seen as a ‘problem’ blocking the rapid development of more efficient on-line commerce. But the legal intricacies shape the limits of the public domain. ‘Solutions’ which compromise them in order to streamline an automated system will in fact defeat the public policy objectives of copyright law.

This collection of essays, derived from a workshop on the subject held in Brisbane in February 1998, explores the problems involved in defining the public domain from different perspectives—policy makers, academics, specialist practitioners, copyright users and producers. The purpose of the workshop was firstly to gather information on current developments and their implications for the public domain. The second aim of the seminar was to stimulate continuing discussion about the future directions of reform in Australia. We hope the publication of these essays will serve as a resource for wider and further debate.

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^[*] Ph.D, Senior Lecturer Law Faculty, Griffith University, Nathan, QLD.

^[**] Ph.D, Senior Research Fellow, Australian Key Centre for Cultural and Media Policy, Griffith University, QLD.