A Study Of Public Domain In Copyright Law

In recent years,especially since the late 20th century,in the context of copyright expansion and the public domain shrinking,there is a growing recognition that the public domain problems in the copyright law are extraordinary important.As an important theory and ideology,public domain has been widespread recognized by the scholars from the United States,Europe and any other countries.Since 2000,Duke University in the United States also have held the seminars on the topic of "public domain" in the intellectual property law twice.Almost all the famous Intellectual Property law professors In the United States,including Mark Rose,James Boyle,David Lange,Jessica Litman,Richard A.Posner and so on,have expressed their own views about it.In China,even though the public domain in the copyright law has been reviewed a lot by many scholars and professors,but these studies are still very weak,which are not comprehensive and systematic either.The reason why the author chooses this subject is that the author wants to gain the goal of improving the knowledge totality of the academics in this field and want to construct a benign mechanism of Copyright law.The content of the thesis is divided into six chapters,and totally it has about 150,000 words.In the first Chapter,the author mainly studied foreign scholars,and especially put emphasis on the American scholar's exploration of the concepts and characteristics of the public domain in the copyright law.First of all,we defined the background of the society which gives birth to the theory of the public domain.That is due to the reason that people increasingly realize the limitations and the deficiencies of the copyright law.Secondly,from a historical perspective,especially through the surveying of the substance of "the Statute of Anne" and the cases of Millar v.Taylor and Donaldson v.Becket which,are famous in the history of Anglo-American Copyright law,we have a good review about the historical process of the birth of the public domain in copyright law.Through the examination of the history,the author concluded that "copyright and public domain are actually twins." Only when public domain is recognized,can the legitimacy of copyright be established;without the recognition of public domain,copyright is not justified.This conclusion is very useful for us to use the theory of the public domain to prevent the expansion of the author's rights in Copyright Law.Finally,after a series of discussion,the author suggest that we should resolutely reject the "functional" theory of the public domain,which is very different from the one that we review here,and which is used by the early Atlantic Countries to justify the piracy of the Copyright books coming from the European countries.In the second Chapter,through the statement of the Lockerbie's "natural legitimate ownership" theory,the economic' s "commons comedy" theory,as well as the "individual" and "social" characteristics of the production of knowledge in this era of knowledge system, the author proves that the existing of public domain in the copyright Law is reasonable.At the standpoint of views which exists outside the copyright law,the author finds a sound argument for the existing of the public domain in the copyright law,which is also very conducive to use the public domain theory to restrict the copyright's expansion.Finally,from the constitutional perspective,the author also illustrates the significance of the existence of the public domain in the copyright law.This is because that the public domain in the copyright law is very useful to alleviate the conflict between the Copyright law and the Constitutional rights to express freely.And also,through the promotion of the competition between people's idea and their expression by the common sphere supported by the "public domain "in the Copyright Law,people can reach a better understanding about the nature of the problems.These have demonstrated the legitimacy and the necessity of the public domain in the copyright law from the Constitutional perspective.In the third Chapter,the author pays lots of attention in analyzing the interacted and close relationship between the copyright law and the public domain.First of all,the author showed his opinion that the copyright and the public domain are not diametrically conflicted with each other.Any standpoint which intent to isolate the relationship between the copyright law and the public domain is completely wrong.Only if we are fully aware that the public domain is not exactly an exception to copyright,whereas it constitute the core content of the copyright,then a benign mechanism of copyright can be really built up.This is mainly reflected in the following two aspects.On the one hand,the public domain nurtures the birth of the copyright works.The reason why we have this idea is that we are aware of that any creation of the human being's are necessary to extract the resources from the existing cultural traditions and the existing common intellectual heritages.On the other hand,the copyright to a large extent promotes the development of the public domain.The Copyright mechanisms improve the division of the writings of the authors,increase the freedom of their creativity, expand the scope of the writers,and provide an equal starting point for the composers.So,the Copyright exactly greatly facilitates the diversity and the development of the public domain in Copyright law inversely.In the fourth Chapter,the author mainly cites the example of the expansion of copyright in the United States,and states the reduction of the public domain in the copyright especially in the late 20th century.From the two aspects of the copyright-related default theory and the dilemma of the construction of the copyright-related system,the author carries out a comprehensive analysis and interpretation aim at finding the reason of the weakening of the public domain in the copyright law.From the metaphor of the "filiations" and the dangerous "property" theory,and from the criticism of the "romantic" view of the authorship,and the exposure of the huge mistakes created by some academician which analogize the theory of "the land of the public domain" to the one in Copyright law,the author analyses and interprets the specific reasons for the increasing decline of the public domain in the copyright law.In short,the author believed that the following factors promoted the enervation of the public domain in the copyright law.It used to regard the copyright works as the "land" or other real estates,to treat the authorship with a "romantic" way,and some people over-emphasized the authors' unique talents' contribution to the works production,so that they seriously neglect the function of the external resources—the public domain—in the formation of the works. All these conclusions would provide an important theoretical preparation and an substantial intellectual premise and foundation for the reconstructions of the public domain in the copyright law in the following articles.In the fifth Chapter,based on the analysis of the previous chapter,the author set out the explicit path and the direction for the reconstruction of the concepts as well as the systems of the public domain in the Copyright law.At this point,the author put forward a series of new ideas and doctrines,such as the theory of towards the "obligation public domain","creating an ecological harmonious circumstances between the copyright and the public domain", "Implanting the eco-friendly copyright philosophy with the public domain ",etc.The pattern of public domain in copyright law is,as James Boyle has analyzed,"a domain for the authors to borrow materials freely" has vanished wholly,not only in conception,but also in reality. Notwithstanding,a lot of scholars have found the tool of the "public domain" to prevent the extend of the copyright from the late 20 century.But,the theory doesn't work at most time. The reason why for this is as Lawrence Lessig,the most famous scholar in United States,has said that,"Law has protected copyright over.So,the key of the problem is not the 'right', but the 'obligation'." In view of the promotion of the development in science and arts,the author suggest that we must insure that information in public domain exist and moreover,we can make full use of them,which is as vital as the protection of hte copyright itself.The author has a strong belief that through the dual transformation of the theory and the rules of the public domain INn the copyright law,it is attainable to construct a perfect public domain in the future Copyright law.In the sixth Chapter,from a positive perspective,the author concentrates on the works that have" fallen into" the public domain due to expiration of the term of the copyright protection.Thus,the goal of this part is to further increase the level of awareness and cognition of people toward the public domain in the copyright law.In this chapter,the author discusses three issues strictly.Firstly,whether or not the works in public domain are property owned by all the people that nourish the works's coming into being? Secondly,can we retract the works that have fallen into the public domain and have them personal owned again? Thirdly,do we must pay for the "use" of works in public domain? Confirmed the idea that the ownership of the public domain belongs to the whole people,so the author think that the works that passed into the public domain are not property that are not possessed by anyone, but owned by all the people.This conclusion is very helpful to improve the level of the administration of these works.Secondly,the author points out that the works which have been placed into the public domain are irrevocable,the reason why for this is because,if not,we will destroy the working balance between the authors and invite bona crisis in the works markets.In the end,the author suggest that the use of public domain's works should be payable,and the fund that gained by this manner should be used to support those most-talented authors who live in a poverty condition and should be used to accelerate the wide spread of those excellent books.