National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)

Abstract

Many examples of innovation in relation to information goods involve works in which various parties have proprietary (copyright) interests, but also involve the public having rights to use those works in ways that involve some of the exclusive rights of the copyright owner. They involve copyright’s “public domain” in the expanded sense of all “public rights”: those aspects of copyright law and practice that are important in determining the ability of the public to use works without obtaining a licence on terms set (and changeable) by the copyright owner. The Creative Commons slogan “Some Rights Reserved” sums up rather well the way in which intellectual goods combine proprietary and non-proprietary elements. However, most examples of this broader public domain do not involve the use of Creative Commons licences. The theme of this article is what these examples have in common, how Australia’s copyright law and the institutions that support innovation have paid insufficient attention to what they have in common, and how – in Australia at least – we need to have a law reform review that will have these common elements (the copyright “public domain”) as its focus. Eight examples of where Australia’s copyright public domain is in need of reform are considered, as are some of the interconnections between them. Along the way, consideration is given to how the public domain in any particular country comprises both “global” and “national” elements, with examples of what makes Australia’s public domain distinctive.