PTC FORUM : PUBLICATIONS

CANADA / COPYRIGHT / PUBLIC DOMAIN

Intellectual Property Journal, Vol 15 No 1, December 2000

Defending the public domain in Copyright Law

Kevin A Jains

Although this article, which forms part II of a larger work, takes Canadian law as its context, it has wider implications. It addresses the question of defending the public domain from the threats posed by current trends in Copyright Law and considers, more specifically, the practical means by which arguments in defence of the public domain will be heard in mostly judicial decision making. Participation in legislative decision-making is taken for granted: the author examines the opportunities for representatives of the public interest to intervene in civil proceedings in which copyright questions are at issue and the public interest otherwise neglected. He identifies several possible proponents of the public domain: other actors in a given industry anxious to ensure that copyright protection does not unduly restrict competition and; civil rights groups concerned with the potential for copyright to be used to as an instrument of private censorship; artists and creators of software concerned that "raw materials may be locked up in over expansive copyright monopolies"; and consumer groups who wish to prevent corporations from using copyright to perpetuate monopoly practices. The author also identifies the various possible forms of judicial intervention. Apart from direct action by a person or group becoming a party to a case, there are two possibilities: first, that they may intervene as an added party and, second, that they may intervene as an amicus curiae, that is, as a friend of the court. Another strategy examined by the author is the concept of public trust. This doctrine has been important in the development of the principle of defending the public interest in United States environmental law. "If we model our rights in intellectual property on real property, importing such an idea of a public trust seems entirely illogical." There would be some problems in doing so; but, unless the defence of the public domain springs from "mere debate to legal action", the public interest will continue to be eroded.
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