Publication details

Autorská práva, public domain a lidská práva

Title in English Copyright, Public Domain and Human Rights
Authors

KOUKAL Pavel

Type Monograph
Citation
Description This monograph deals with the issue of the non-protected parts of copyrighted works in the view of constitutional law protection. Firstly, the author focuses on the copyright-free elements of the author’s works in the context of the commons. Based on the conclusions of Peter Drahos and Alexander Peukert we can divide the commons into two separate groups: goods which belong to nobody (Gemeinfreiheit, negative commons), and goods which belong to everyone (Gemeinschaftsgüter, positive commons). The author uses Peukert's structural approach to the public domain; especially his division of the public domain into four parts (structural public domain, time-limited public domain, autonomous public domain, and exceptions public domain) and from this perspective analyzes various forms of intangible assets at the national level. In this respect, he pays attention to the constitutional law regulation of intangible assets [Art. 2 (3), Art. 11, Art. 34 (1), (2) of the Charter of Fundamental Rights and Freedoms of the Czech Republic]. In his book, the author achieves the same conclusions on the copyright-free elements, as we can find in the German jurisprudence. The public domain in the sense of copyright covers non-individual elements such as (i) abstract features (genres, general plots, general types of characters, typical scenes, ideas, chemical or mathematical formulas etc.) or (ii) facts existing objectively (news, facts, elements of nature, historical events, biographical data). On the other hand, other parts of the public domain can be individual per se, but the copyright law does not protect them, due to public interests, technological progress in the software development, or the nature of scientific discourse. In this regard, the public domain also entails (iii) scientific ideas, principles, theories, and discoveries, (iv) ideas and principles underlying computer programs, (v) free works, and (vi) works excluded from copyright protection in the public interest. The last category (works excluded from copyright protection due to the requirements of public interest; Sec. 3 of the Czech Copyright Act) includes two not very cohesive groups of human creations. While official works (laws, governmental regulations, court or administrative decisions) can be considered as collective goods belonging to all (positive inclusive commons), "works of traditional folk culture" are common goods that do not belong to anyone. The author deals with three methodological approaches to the copyright-free elements: the method of balancing competing interests, the method of distinguishing between individualized and non-individualized elements, and notably the method of balancing fundamental rights and freedoms (proportionality test, practical concordance). The author holds the opinion that the use of intangible assets in their natural state is based on the principle of public domain [see also the decision of the EFTA Court in Vigeland case, Municipality of Oslo v. Norwegian Board of Appeal for Industrial Property Rights (E-5/16)]. Intellectual property rights are only islands of exclusivity in the sea of freedom. In the original state, intangible goods are ubiquitous and non-rival. If there exists no legal prohibition restricting their use, we consider them as goods that everyone can use freely. From the constitutional law perspective, we can regard the general freedom of action (Handlungsfreiheit) as basics of the public domain, which is expressed by a saying: "what is not prohibited by law is allowed" [Art. 2 (3) of the Czech Charter of Fundamental Rights and Freedoms].