Public Domain In The Context Of Copyright Law: A Perspective Of Pluralism

With the thesis of "pluralistic public domain" and the corresponding perspective of pluralism,this dissertation focuses itself on public domain in the context of copyright law.It is composed of a single introduction,five chapters and a conclusion.This dissertation tries to achieve three targets:(1) a confirmation of the "pluralistic public domain" in both de facto and de jure aspects,and based on this perspective,describe the overview of the "pluralistic public domain" in the context of Chinese copyright law;(2) analyze the objects of the "de jure public domain" in the context of copyright law,then look for the inter-relationship between the "de facto public domain" and the "de jure public domain";(3) by focusing on the issues such as "news works", "unlawful works","orphan works" and the "right to making available through Information Network",observe the influences to the legislation and judicial decisions by the pluralistic public domain.The arguments of the six chapters can be concluded as follows.In the Chinese academic sphere,the terms of "public domain" and "public sphere",in different contexts,have been employed by politicians, economists and lawyers.Generally,both "public domain" and "public sphere",respectively used in the politics and the economics,refer to some spaces isolated from either the pure "public" or pure "private" realm.The "public domain" in the economics also stands as a dynamic,transformative space.Contrast to these dynamic characters in politics and economics,the "public domain" in legal discussions is often defined with an approach of dichotomy.This approach cannot describe the real outline of public domain in the context of copyright law.Being statutory right,copyright is awarded by the sovereignty to rearrange the vested interests.In this arrangement,the public domain can be affected, though its existence dose not relies to the copyright law.The public domain is by nature existing with a pluralistic way.Even the "de jure public domain" is composed of multiple phases.Copyright is also a kind of exclusive right of authorization.This feature makes the works entering into a "de facto public domain" easily when the right owner dose not claim his copyright affirmatively,no matter this omission is caused by others or the intent of the right owner.Copyright law does not deny the validity of right waiving.Nevertheless,we still need to analyze the features of each "waiving" conduct carefully, because it may be actually a conduct of authorization.A valid waiving conduct should satisfy five prerequisites,and it will leads to three legal consequences.Neither the advocators nor the opponents of legitimating the transferring and the waiving of moral right should be supported because they both neglect the characteristic of each sort of moral right.Right to making public can neither be transferred nor be waived,as well as right to the integration of the work.Right of revision cannot be transferred but can be waived,whilst right of attribution can either be transferred or be waived. On the term of copyright,this article summarized the relevant provisions in different countries.The Chinese legislation of perpetual protection to the moral right is criticized afterwards.Then the inner paradox of the term of copyright is illustrated:because it highly depends on the life of the author, once the user could not locate the right owner,the copyrightabilty of the target works would not be verified.Hence the problem of the orphan works is caused by this paradox.From the perspective of "de facto public domain",this article finds that the term of the copyright is not as clear as it supposed to be:firstly,the digital transmission may obfuscate the time of the publication;secondly,because the copyright is basically the right of copy and the right of dissemination,even a work has been droped into the "de facto public domain",using it may always at the risk of being suit. The dichotomy of "Idea / Expression" is not eligible to draw the line between public domain and the domain of exclusive right.On the contrary, with the perspective of pluralism,one may find that even a work as a whole is under the copyright protection,the inner part of it may also stay in the de jure public domain.The object of the copyright protection is limited to it's the part with originality.Therefore,the test of the copyright infringement to a work should remain on the requirement of its originality.As for the works created by the governmental organizations,this paper illustrated both the British way of "crown works" and the way of denying their copyrightability.Although China follows the latter,some provisions in Chinese legal system can still be compared with the regime of crown works.As for the news,this article argues that news is a kind of work,whilst the law excludes it from the copyright pool.The legislation of the news should be rearranged by categorizing news with three types.Then bring them into the pools of exclusive right,fair use and public domain respectively.As for the unlawful works,in Chinese copyright law,both unlawful content and illegal formality are denied to the copyright protection.The works with illegal formality and the works with unlawful content may interchangeable. The conflict between Chinese domestic law and the international copyright principles may leads to a sort of "super-national treatment".The "three step test" can be utilized to examine whether the provision of denying copyright of works with unlawful content is a breach of the TRIPS.The answer is yes, whilst the reason of this answer lies on the standard of content censorship: it is too vague to satisfy the requirement of "certain special cases".So if the regulations of censorship are unambiguous,the Chinese principle of denying unlawful work's copyright may still be legitimated.However,if the range of the "unlawful work" is not clearly defined,and if the procedure of censorship is not arranged in details,then no matter the legislation provide or not provide the copyrightibility to the unlawful works, these works may enter into the de facto public domain,and arouse the illegal conducts of "rent-capturing".Orphan works are those works that their copyright owners can not be located.The inner paradox of the copyright term leads the problem of orphan work internationalized.Chinese law does not provide the solution to orphan work problem and some even more unreasonable provisions still exist.Four standards can be employed to evaluate the solutions for the orphan work problems.Based on these standards and with the pluralistic approach,a multi-modes solution is proposed,and it is believed capable of solving the orphan work problem in Chinese legal regime.The four annexed tables are the summarization of protecting terms of different countries,as well as the objects that are denied copyrightability.