Enclosure of the Public Domain

WIPO, the World Intellectual Property Organization, has approved a broadcasting treaty which threatens the public domain. If enacted in national laws, broadcasters could gain exclusive rights to make copies of works in the public domain. In effect, this is a modern-day attempt at enclosure, and makes a mockery of the very concept of a public domain.

Now I am not a lawyer, but it seems to me that if this principle is extended, it could also attack open licensing schemes such as the GPL and Creative Commons licenses. Say the definition of “broadcast” was extended to cover certain types of software distribution (perhaps the normal way to install software in the future will be over the network, and that process is considered a broadcast). In this case, the individual downloading the software would not have a right to copy and distribute it. The GPL stipulates that if you are unable to pass on your rights to others, then you are not permitted to license the software. The upshot of which is that with such a law, GPL software could not be distributed by broadcast, placing it at a disadvantage relative to commercial software.

As it stands, copyright and other “intellectual property” laws have given publishers and distributes tremendous power compared to the authors of those works, never mind the public. This tilts the scale even farther in their favor. If we are unable to fix the laws, open content licenses like the GPL and Creative Commons offer an alternative to keeping work in the hands of creators and their audiences. This WIPO proposal is a grave danger to the continued ability of individuals to participate in the culture and ideas of their societies.

2004-09-12

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