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10 Некоторые из терминов, обсуждаемых в другом документе, подготовленном к настоящей сессии, а именно «Список и краткое техническое пояснение различных форм, в которых можно найти традиционные знания» (WIPO/GRTKF/IC/17/INF/9), также имеют отношение к настоящему документу.
11. Комитету предлагается принять к сведению этот документ и Приложение к нему.
NOTE ON THE MEANINGS OF THE TERM “PUBLIC DOMAIN” IN THE INTELLECTUAL PROPERTY SYSTEM WITH SPECIAL REFERENCE TO THE PROTECTION OF TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS/EXPRESSIONS OF FOLKLORE
1. Most definitions of the public domain in the IP context12 cluster around three main foci: the legal status of material, freedoms to use material, and the accessibility of material.
2. For example, Black’s Law Dictionary defines the public domain as “[t]he universe of inventions and creative works that are not protected by intellectual property rights and are therefore available for anyone to use without charge. When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and can be appropriated by anyone without liability for infringement.”13 Black’s Law Dictionary, Second Pocket Edition, provides that the public domain, in respect of IP, is “the realm of publications, inventions, and processes that are not protected by copyright or patent.”14
4. The public domain consists of information resources free from IP rights,15 or IP-free resources,16 or “information artifacts unencumbered by IP rights,”17 i.e., every intellectual product that was never or no longer is under IP protection.18 Put differently, it is made up of material that was ineligible for protection in the first place,19 e.g., material of insufficient originality to qualify for copyright protection or an invention that did not fulfill the conditions of patentability or was not patentable, of material “freed” by invalidation or expiry of the relevant IP right, and of material that was eligible for protection but, in the case of industrial property, in respect of which protection was not applied for.
5. At this prong’s core is an emphasis on an IP-free legal status, on the absence of IP rights. Such definitions can only be understood in relation to what is protected under IP laws. In that sense, the public domain is “simply whatever is left over after various tests of legal protection have been applied […], the ‘negative’ of whatever may be protected […].”20
6. Although it may be common to conceive of material as either being in an IP-free public domain or encumbered by IP rights, the public domain literature reveals a continuum of legal states in between those endpoints.21
10. It is argued that “a domain must be public in the sense of being publicly accessible to be a public domain.”25 This contention calls for two remarks. First, not all that is accessible is in the public domain. Thus the public domain has to be distinguished from material which is simply publicly available or accessible. It should further be noted that accessibility is a relative concept: there are various degrees of “accessibility.”26 And second, perhaps in contradiction with the above contention, not necessarily all that is in the public domain is accessible.
C.1 ACCESSIBLE BUT PROTECTED
11. Contrary to some perceptions, material is not in the public domain simply because it is accessible or available through a free and open source. For example, paintings hung on the walls of public museums may be freely accessible and reproduction by means of photography may be permitted, but it does not mean that the paintings are in the public domain. Likewise, being able to view a reproduction of a work, or, in fact, a TCE, on the Internet does not mean that the work or TCE is in the public domain.27
C.2 UNPROTECTED BUT NOT ACCESSIBLE
12. The fact that something is in the public domain does not guarantee as such a freedom to access it. The lack of IP protection cannot in itself impose free access to the copies of public domain material.28 16. In the field of TK, experts on questions of access and benefit-sharing concerning genetic resources and associated TK33 have recognized a critical distinction between TK associated with genetic resources being in the “public domain” and that being “publicly available”. An expert report states that:
17. TK might be widely accessible to the public and might be accessed through physical documentation, the Internet and other kinds of telecommunication or recordings. TK might be disclosed to third parties or to non-members of the indigenous and local communities from which TK originates, with or without the authorization of the indigenous or local communities (see further “List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found”, document WIPO/GRTKF/IC/17/INF/9).
18. As Black’s aforementioned definition indicates, the public domain concept pertains to patents, copyright, trademarks and trade secrets.
19. The existence of the public domain is a foundational principle of the copyright system.35
A.1 BASIC DEFINITION
20. The Berne Convention for the Protection of Literary and Artistic Works, 1971 applies to all works which, at the moment of the Convention’s coming into force, “have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.”36
21. Under the Convention, the public domain is “the scope of those works and objects of related rights that can be used and exploited by everyone without authorization, and without the obligation to pay remuneration to the owners of copyright and related rights concerned – as a rule because of the expiry of their term of protection, or due to the absence of an international treaty ensuring protection for them in the given country
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