Construction of Digital Commons and Exploration of Public Domain

Author:Jerry Jie HUA
Journal of International Commercial Law and Technology
Vol.9, No.3 (2014)
Construction of Digital Commons and Exploration
of Public Domain
(Jerry) Jie HUA*
Deacons (Hong Kong) ;
Abstract: The expansion of the rights of copyright owners caused by digital
network technology greatly reduces the capabilities of users to obtain access and
exploitation of the copyrighted information and works. Some commentators vigorously
question and attack traditional systems, asserting that cop yright law has never been of net
benefit to society but rather served to enrich a few at the expense of creativity. Facing the
widespread anti-copyright arguments and tendencies, scholars and critics therefore
endeavor on searching for solutions that could restore the balance of interest between
copyright owners and public users both within and outside traditional copyright regimes.
Based o n concepts of open licensing, scholars began to import alternative schemes under
which authors reser ve only part of their exclusive rights and license public users to exploit
their co pyrighted works upon satisfying the licensing conditions.This article will anal yze
the emergence of digital commons based on voluntary licensing scheme and its influence
on restoring the continually shrinking public domain. It will firstly introduce a nti-copyright
tendencies and the emergence of open access projects which co mprise digital commons.
This article will then examine a well-known example of digital commons, namely, the
Creative Commons, which provides authors the opportunity to r elease their works under a
series of licenses. This article will finally analyze the influence of digital commons which
are represented by projects, such as the Creative Commons, to the public do main.
1. Introduction
The traditional copyright laws have bee n developed with a one-size-fits-all approach to achieve t heir goal
of promoting the progress of culture and useful arts. On the one hand, they grant an author with a series of
exclusive rights to reproduce, distribute, publicly perform and displa y his/her works, make adaptations,
and attribute the work to the creator him/herself. The copyright systems also endow authors the right to
assign or license copyrighted works. On the other hand, the syste ms incorporate fair use/fair dealing
doctrines and compulsory licensing schemes to guarantee ac cess and exploitation of the copyrighted work
by public users and encourage recreation. Copyright laws have established a limited term of pr otection
upon expiration of which, the copyrighted works will enter the public do main and will be free for all to
use. The copyright systems have been established with the purpose to well maintain a balance between
copyright owners and users, thus motivating creative activities by cop yright owners and in the meantime,
promoting wide dissemination of works and information.
The development of technology greatly enlarges the capability to access and the range of expressive
means by ordinar y users,
1 and yet ironically expands the scope and duration o f copyright protection.
Subject matters under protecti on have expanded from traditionally paper -based works to many new types
of media, such as digital music and motion pictures as well as so ftware. The duration of protection has
been extended from the origin al 14 years from publication of the work plus a nother 14 years if the author
* Associate (Legal Assistant title) at Deacons (Hong Kong); PhD (Intellectual Property Law), The University of
Hong Kong; LLM in Comparative Law, University of Florida (Gainesville FL, U.S.A.); LLB, China Foreign Affairs
University (Beijin g, China). This article is based on chapters in the PhD thesis titled “Toward A More Balanced
Approach: Rethinking and Readjusting Copyright System in the Digital Network Era” submitted to The Universit y of
Hong Kong for partial fulfillment of the PhD degree. The author wishes to thank The University of Hong Kong for its
Graduate Studentship in financial support of the research and Professor Li Yahong of The University of Hong Kong
for her involving the author in the legal research of Hong Kong Creative Commons
1 Michael W. Carroll, Creative Commons as Conversational Co pyright, INTELLECTUAL PROPERTY AND
RELATED RIGHTS, Peter K. Yu eds. 2007) at 445-461.
Construction of Digital Commons and Exploration of Public Domain
is alive to the creator’s life plus 70 years. The emergence of digital technology and the internet has
exacerbated the te nsion bet ween benefits reaped by copyright owners and the i nterests of public users.
The Digital Millennium Copyright Act (DMCA) of the United States imposes liabilit y onto internet
service p roviders (ISPs) and punishes circumvention of technological measures that control access and
copying of copyrighted works as well as production and dissemination of technology or d evices that
facilitate t he circ umvention of tec hnological measures. The Europea n Unio n Information So ciety
Directive, which was passed in 2001, addresses almost the same issues as the DMCA, including the
provision of very li mited exceptions to exclusive rights held by copyright holders and protection of
technological measures. China follo ws the copyright reform in developed societies to deal with copyright
problems in the digital network era by promulgating the Regulation on the Protection of the Right to
Network Dissemination of Information (the 2006 Regulation).
The increase in the rights of copyright o wner facilitated by digital network technology greatl y reduces
the means of users to obtain access and exploitation of the copyrighted information and work. Some
commentators have explicitly questioned and criticized the traditional system by asserting that copyright
laws have never been provided benefits to society, but rather serve to reward a few at the expense of
2 Copyright opponents further promote anti-copyright debates and draw public attention to the
issue of copyright refor m. One famous instance of an anti-copyright movement was Grey Tuesday which
occurred on February 24, 2004. The activists in tentionally violated a copyright of EMI through The White
Album by distributing MP3 files of a mashup album called The Grey Album .3 Over 400 sites participated
in the Grey Tuesday movement, with pr otesters stating that “The Grey Album illustrates a need in
revision in copyright law to allow sampling under fair use of copyrighted material or proposing a s ystem
of fair compensation to allow for sampling”.4 Similar to The Grey A lbum activists, social and po litical
groups also suggested proposals to their governments to refo rm the system of copyright enforcement and
compensation. The French group, Association des Audionautes, prop osed that France should legalize peer
to peer file sharing and compensate artists with a surcharge on ISP fees.5 In addition, seven Swedish
Parliament members from the Moderate Party proposed the complete decriminalization of o nline file
sharing in a Swedish tabloid.6 Internet corporate entities, such as YouTube, Viaco m and Google,
obviously would not oppose copyright and may cooperate to remove online copyrighted works upon
requests but could decline to actively enforce copyright by asserting that they did not have the power to
prevent the uploading and downloading of copyrighted material.7
Commentators who do not support severe copyright protection and enforcement argue that authors
create not only because of economic incentives and monetary compensation, but also because o f their
desire to share thoughts and earn recognition from peer s. Many authors have continued to write even if
they do not think there is a market for publicatio n. Current copyright laws discourage the wide
dissemination of the works of authors. Other arguments perceive freedom of knowledge as a fundamental
human right and advocate for the release of copyright for fr ee culture and free communication. In face of
the widespread anti-copyright arguments and tendencies scholars and critics therefore endeavor to search
for solutions that could restore a balance of interes t between copyright owners and public users both
within and outside traditional copyright regimes. Within the system, suggestions focus on allowing
appropriate exceptions for circumvention of technological measures, establishing reasonable safe harbors
for ISPs, and redefining copyright limitations and exceptions. Based on copyright doctrines and legal
concepts outside the intellect ual property regime, scholars have begun to import alternative schemes
under which authors reserve only part of their exclusive rights and license public users who could then
exploit their copyrighted works upon satisfying the conditions of the license.
This article will firstly introduce the alternative schemes that are established based on copyright
norms, but outside traditional co pyright frameworks. Well-known examples i nclude open source software
and the Creative Commons. Then this article will take the Creative Co mmons as an example to further
examine how this alternative scheme works, the benefits that it will bring to the dissemi nation of works
and free communication, and whether it has latent disadva ntages that should be of concern. Finally, this
2 Anti-copyright, availa ble at (last visited Apr. 15, 2010).
3 Id.
4 See supra note 2.
5 See supra note 2.
6 See supra note 2.
7 See supra note 2.

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