Volume 9 Issue 1

Technological measures: saviour or saboteur of the public domain?

by Catherine Hawkins *

This paper examines whether the proposed new remedies to be included in the Copyright Act 1968 against the abuse of technological copyright protection measures are likely to enhance or restrict the availability of copyright material in the public domain.

The findings and recommendations of the CCG, CLRC, WIPO, the Attorney-General’s Department and the Department of Communications and the Arts are presented and analysed. The paper concludes that there should be some form of legislative protection for technological measures, and that such protection would not be against the interests of the public domain. On the other hand, the author stresses that in developing such legislative protection, the Government must be aware of the possibilities of diminishing access to public domain material and reducing the effectiveness of the fair dealing exceptions.

But is that public domain really under threat? The answer, plainly, is ‘yes’. Look at every aspect of intellectual property and the evidence is plain: the public domain, like the mighty rain-forests of South America, is being whittled away almost while we watch.

Ultimately, the ‘digital economy’ will only prove to be viable if the creators of material disseminated by means such as the Internet consider that they have adequate and enforceable protection for their works.

Phillips, J, ‘The Diminishing Domain’, [1996] 8 EIPR 429-430 at 430.

Davies, C, ‘WIPO treaties – the new framework for the protection of digital works’, Communications Law, Vol 2, No 2, 1997, 46-48 at 48.