The Public Domain

This paper is the transcript of a speech given at a conference to celebrate the 40th anniversary of Australia’s Copyright Act 1968, held at Old Parliament House, Canberra, in 2009. It starts with the question “What rights do the public have to use works or other forms of creativity”. Four main categories of rights are identified: uses of works which are outside the exclusive rights of the copyright owner; uses of works where there is no copyright owner; the many different types of statutory rights that are given to members of the public to use works in different ways; and those defacto uses of the owner’s exclusive rights which, as a matter of practice, go unchallenged. These “public rights” are defined as all those aspects of copyright law and practice that provide the ability of the public to use works without obtaining a licence on terms that are set and changeable (even if only at the end of the licence term) by the copyright owner. The origins of these public rights are both global and national. The national influences are not unique to Australia, but some of them are unusual, like our long history of legal deposit requirements. In combination, Australian law is relatively inhospitable to the creation of public rights.What do we need to do to try to more effectively protect this whole range of public rights? First, those who are interested in some of these aspects of copyright law need to recognise that they have a common interest in all these aspects of public rights. If there is a common thread, perhaps it’s the recognition that all forms of creativity must draw on and rely upon previous creations, ‘standing on the shoulders of giants’. Second, we need to better articulate a set of principles on which the protection of public rights in copyright are based. Ten ‘Principles for Public Rights in Australian Copyright’ are proposed: 1. Balance2. Limits on exclusive rights3. Minimum term 4. Preservation of Australian publications5. Fair & flexible exceptions6. Fair compulsory licences7. Support for voluntary licensing8. Protection from technology & contracts9. Proportionality in enforcement10. Free/open access to publicly-funded contentThird, there is a need for a thorough-going law reform review of the Copyright Act, with its principal focus being the public rights side of copyright. Fourth, public rights need a peak body in Australia, and there may be a nucleus of such a public body in the Australian Digital Alliance. Finally, public rights need a good public image and perhaps a mascot. The best candidate is Norman Lindsay’s Magic Pudding: the inexhaustible self replenishing resource, similar to our public domain, on which further creativity can be built, non-rivalrous and inexhaustible.