paying public domain
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Paying public domain (french: Domaine public payant, es, dominio público pagante) is a
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
regime where copies, presentations or performances of a work that has entered the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...
are still subject to royalties, which are payable to the state or to an authors' association. The principle is that revenue from the work of long-dead artists should be used to support creativity of living artists. It may apply only to certain types of work, such as
folklore Folklore is shared by a particular group of people; it encompasses the traditions common to that culture, subculture or group. This includes oral traditions such as tales, legends, proverbs and jokes. They include material culture, ranging ...
or
traditional cultural expressions Cultural expressions are creative manifestations of the cultural identities of their authors. They are treated in the international legal system in terms of cultural rights, intellectual property law and international trade. Definition The obje ...
. However, communities that wish to control their
traditional knowledge Traditional knowledge (TK), indigenous knowledge (IK) and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. According to the World Intellectual Property Organ ...
or cultural expressions may perceive the royalties as an unwelcome tax. Paying public domain regimes have been introduced and withdrawn in several countries. They are still in place in several countries in South America and Africa.


Origins

Victor Hugo Victor-Marie Hugo (; 26 February 1802 – 22 May 1885) was a French Romantic writer and politician. During a literary career that spanned more than sixty years, he wrote in a variety of genres and forms. He is considered to be one of the great ...
, who also played an important role in developing the
Berne Convention The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
, was one of the earlier supporters of the concept of ''domaine public payant'', under which a nominal fee would be charged for copying or performing works in the public domain, and this would go into a common fund dedicated to helping artists, especially young people. There was no post-mortem protection of works, but a period of exploitation that started from the date of publication and could expire during the author's lifetime.


Definition

A 1949
UNESCO The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations (UN) aimed at promoting world peace and security through international cooperation in education, arts, sciences and culture. It ...
report said that the normal sense of the term was that "after the expiration of the normal period of protection, that is, when the work falls into the public domain, the work cannot be freely used, as it could in the case of normal free public domain. Instead, the user must pay a royalty, generally to the authors' societies, who utilize such funds for cultural purposes or to aid needy authors or their families. In some cases, the state also participates in such fees." A 2010
WIPO The World Intellectual Property Organization (WIPO; french: link=no, Organisation mondiale de la propriété intellectuelle (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishin ...
report said that under these regimes "a fee is imposed for the use of works in the public domain. Generally, the system works like a compulsory license: the use is conditioned on payment of the prescribed fee but not upon the securing of a prior authorization." Fees payable to the state and/or the authors' society vary from country to country. The user must pay the fee, but does not have to obtain prior authorization. The fee may only be applicable to commercial exploitation of the material. It usually applies only to works that have entered the public domain because their copyright has expired, but in some countries it applies to expressions of folklore. Usually the fees are used to fund young or struggling creators, or to promote creative works, but in Algeria they are used to preserve the public domain itself. The cost of administration may absorb much of the money, but if the fees are to high they may discourage use of public domain materials. The concept has been proposed as a way to protect traditional cultural expressions, but may not be suitable for communities more interested in control over traditional knowledge and traditional cultural expressions than in compensation. It might be difficult to establish the true owners and the types of work to which it would apply, and it could be seen simply as a form of taxation.


Countries

The 1949 UNESCO report said there were only five countries that had laws that adopted this system: Uruguay (since 1937), Bulgaria (since 1939), Italy (since 1941), Romania (since 1946) and Yugoslavia (since 1946). The report thought that some form of ''domaine public payant'' might also apply in Russia. In Bulgaria, Uruguay and Yugoslavia, the rule applied to any sort of public domain work. In Italy it was limited to presentation of works intended for public showing and musical works, and to books. In Romania it applied to publication and representation of literary and dramatic works. In Bulgaria the duration lasted for 20 years after the work entered the public domain, but in the other countries it was perpetual. In the past Brazil (1973–1983), Italy (1882–1925 and 1941–1996), France (1956–1976) and Mexico (1963–1993) had paying public domain regimes, but have since abolished them. A 1984 article listed Argentina, Italy, Mexico and the USSR among the countries that had adopted some form of the system. A 2017 article noted that in Argentina and Uruguay a fee was payable to the state for almost every use of works in the public domain, whether or not for commercial purposes, including reproduction, publication, performance and broadcasting. The 2010 WIPO report noted the paying public domain was still in force in Algeria, Kenya, Rwanda, Senegal, Republic of the Congo, Côte d'Ivoire, and Paraguay. It explained that the Bangui Agreement of the OAPI ( Organisation Africaine de la Propriété Intellectuelle) and its Annex on literary and artistic property provided for such a regime for exploitation of expressions of folklore and works or productions that have fallen into the public domain. A similar system, called "Community Intellectual Rights", has been proposed in Latin America, inspired in part by Peru's Law No. 27811. The concept is that "traditional knowledge should stay in the public domain for anyone to use, but originators should share in the benefits when it is used for commercial purposes. Furthermore, these rights should not be subject to time limits. There have been proposals to introduce a system across Europe, but as of 2001 the idea had not gained much support. The German Writers Union has proposed a modern version on the grounds that and should be linked, since usually benefits the distant heirs of dead artists rather than being used to encourage living artists. A proposal discussed and rejected for the 1993
Copyright Duration Directive Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive in the field of EU copyright law, made under the internal market provisions of the Treaty o ...
was that the last 20 years of fees should be used to benefit living artists rather than the artist's heirs.


Sample laws

Under Algeria's 19 July 2003 Copyrights and Related Rights Act, works of traditional cultural heritage and national works considered as public property are granted special protection rticle 8 The National Bureau of Copyrights and Neighboring Rights protects these works rticle 139 Their use is subject to a license from the Bureau, and if the use is profitable a royalty is payable to the Bureau rticle 140 Burundi Act 1/021 2005 Article 25 says: *Works in the public domain shall be placed under the protection of the State, represented by the Ministry in charge of culture. *The public representation or performance or the direct or indirect fixation of works in the public domain and of works exclusively composed of elements borrowed from works that have fallen into the public domain, with a view to exploitation for profit, are subject to regulations on royalties under conditions that shall be determined by an order of the Ministry in charge of culture. *The revenue from the collection of royalties for the use of works in the public domain shall be devoted to social and cultural purposes. Cape Verde ''Decree-Law No. 1/2009'' of April 27, 2009 says "The use and exploitation, for financial gain, of works in the public domain shall be free as long as such use is subordinate to absolute respect for the moral rights, on the previous authorization of the member of Government responsible for culture and the payment of a fee to be set by the members of Government responsible for culture and finance, with the purpose of promotion and cultural development and social assistance to Cape Verdean authors."


Notes


Sources

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