Construction of Digital Commons and Exploration of Public Domain

• Author: Jerry Jie HUA
• Pages: 148-164

JICLT

Journal of International Commercial Law and Technology

Vol.9, No.3 (2014)

148

Construction of Digital Commons and Exploration

of Public Domain

(Jerry) Jie HUA*

Deacons (Hong Kong)

jerryhua@connect.hku.hk ; jerry.hua@deacons.com.hk

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

INFORMATION WEALTH: ISSUE AND PRACTICES IN THE DIGITAL AGE (VOL.1 COPYRIGHT AND

RELATED RIGHTS, Peter K. Yu eds. 2007) at 445-461.

Construction of Digital Commons and Exploration of Public Domain

149

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

creativity.

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 http://en.wikipedia.org/wiki/Anti-copyright (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.