Every year on January 1, works protected under copyright law enter into the public domain due to their copyright protection expiring. Thus, as a new year approaches, those in the field of copyright look to see which works will expire at the end of the year. As the world entered January 2023, many excitedly anticipated that Disney’s copyright protection of Mickey Mouse in the United States (US) would expire at the end of 2023, allowing Mickey Mouse to . This means that  reproduced, adapted, published, publicly performed, and publicly displayed by anyone in the United States without infringing upon Disney’s copyright.

As a general rule in the U.S., for works created after January 1, 1978,  for the life of the author plus 70 years. However, for works created before January 1, 1978, the duration of copyright protection depends on several factors as set out by  in the United States. Mickey Mouse  in the US in 1928 with the film “Steamboat Willie,” so its copyright protection term was dictated by several factors outlined in chapter 3.Additionally, the expiration of the copyright term only applies to the original version of Mickey Mouse displayed in Steamboat Willie; later versions of Mickey Mouse will still be protected by copyright. This original version of Mickey Mouse is a black and white rat-like depiction with a long snout and black eyes, whereas later versions of Mickey Mouse include the version of Mickey with his signature red shorts and white gloves.  

Copyright law in the US has evolved many times in part as a result of Disney lobbying for copyright term extension. Originally, the Mickey Mouse copyright was supposed to expire in 1983 because when Mickey Mouse was first debuted to the public in 1928, copyright law only protected works for 56 years. However, in 1976 Congress passed the  which extended the copyright term to 50 years after the death of the author or 75 years after the death of the author if the author was hired by an employer to create the work. As a result, the Mickey Mouse copyright was then set to expire at the end of 2003.

Starting in 1990, Disney pushed hard for an extension of copyright protections. This resulted in the  which extended copyright protection to 70 years after the death of the author. This extension is why Mickey Mouse’s copyright protection is set to expire at the end of 2023. The extreme lobbying from Disney to extend copyright protections earned the 1998 act the nickname of the “Mickey Mouse &�Բ�����;������.”

Although the original Mickey Mouse’s copyright protection will expire at the end of 2023, Disney will still be able to protect the Mickey Mouse brand through trademark law. Mickey Mouse is  as Disney’s property because . Trademark protection can theoretically last forever if Disney can continually show that Mickey Mouse is associated with its company.  Disney will likely be able to continually show an association with Mickey Mouse. In 2007, Walt Disney Animation Studios  to incorporate the original version of Mickey Mouse. Therefore, although someone may use the original version of Mickey Mouse in a work, they are not able to use this version of Mickey Mouse for any branding purposes or any purpose that would cause consumers to be confused about the source of the Mickey Mouse product. These intersections between trademark and copyright law may stop Mickey from strolling into public use for the coming years.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

On June 23^rd, 2022, the Parliament of Canada passed legislation to extend the term of copyright protection in literary, dramatic, musical and artistic works from life of author plus 50 years to 70 years. The extension may seem like an additional incentive for creativity, but many have consistently voiced that it won’t be as beneficial as anticipated.

The change results from Canada’s commitment in the (CUSMA) to extend the general term of copyright protection. The clarifies the extension’s benefits, stating that “[a] longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works.” The exact date of the change, and therefore the specific list of affected works, remains unknown.��

Meanwhile, IP experts, organizations, and institutions continue to express concerns about the negative consequences of copyright term extension.�� expressed how the 20-year extension could “hamper creativity” by inhibiting them “to build upon and rework creative content”. The extension, they argue, would hinder creativity and stray from a balanced copyright system – one where “the rights and interests granted to both creators and the general public are necessary to stimulate vibrant creativity and foster the sharing of knowledge.” have also pointed to studies conducted in other countries that show the negative effects of copyright term extension. According to an interesting study on “,” a book entering the public domain generates 26.5 additional editions on average after it enters the public domain. ��Moreover, the availability of audiobooks for public domain bestsellers significantly increased from 1913-1922 compared with copyrighted bestsellers from 1923-1932.

Critics are also concerned about the extension’s impact on “orphan works” or “out-of-commerce works”, which was addressed in last year’s on how to implement an extended general term of copyright protection in Canada. "Orphan works" are works that are still protected by copyright but whose owners are unknown or unlocated. “Out-of-commerce works” are works still under copyright protection but no longer available to the public through normal commerce channels. The main concern is that the 20-year extension will result in more orphaned or out-of-commerce works, posing more barriers to the further spread of ideas.

To address these issues, the recommended implementing a system where copyright holders who want the extra year can register for it, while the other works will enter public domain. The Committee argues that this would contribute to a balanced system by protecting works with ongoing value while allowing works that don’t to enter the public domain. However, along with concerns about higher administrative costs, some are also concerned that the registration requirement could create a “” – one for owners who are knowledgeable and can afford the registration fees, and another for those owners who are unaware of the option to extend protection. Moreover, due to the varying times the works would enter the public domain, the two-tiered system could also hinder creativity.��

The concerns are loud and clear. Despite being proposed to encourage creation, the extension seems likely to obstruct the very thing it was intended to promote.

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Andrew Masson is an IPilogue Writer and 2L JD candidate��at Osgoode Hall Law School.��

I have not explored the comedy-horror genre much, but Director Rhys Waterfield's vision of a has intrigued me from a legal perspective. The IPilogue previously published about when Ryan Reynolds created a fun featuring the iconic original 1926 Winnie the Pooh. Ryan Reynolds's fun-loving commercial was generally well-received by the public, but some claimed that this would “”. ��

Purpose of Public Domain

Some may view this as the “darker” side of works entering the public domain, but the public domain is meant to be a wellspring for future creativity. Therefore, although some may find it distasteful, it does fit within the overall purpose of works entering the public domain. The Supreme Court of the United States held in that copyrights are meant to be a “special reward” and that the “products of [creators] genius” would be made public after a “limited period of exclusive control.” The “limited periods” of copyright — now 70 years in Canada and 70 or 95 years in the US — is significant because most copyrighted materials loses its value at that point, and is rather at risk of being lost.

If copyrights were temporarily unlimited, then there may be a risk of material being physically lost because there is no way for it to be legally replicated. ��Although advancements in digital storage and technology in the last few decades have minimized these concerns, a lot of materials in the 20^th century were analog. This means that if the physical works were lost, damaged, or destroyed, those cultural artifacts would no longer exist. Additionally, has shown that works that entered the public domain compared to copyrighted best sellers of that time were significantly more likely to be in print, with more editions available, and cheaper in costs. Since most copyrighted work is not as popular as Winnie the Pooh, they do require 95-year copyright — the public domain acts as a resource to persevere the work as well as provide inspiration for creative uses of that work.

Is Winnie the Pooh: Blood and Honey Violating Disney’s Copyright?

Although policy reasons justify this film’s release, there is one significant distinction between the Ryan Reynolds interpretation and Director Waterfield’s. Disney owns the copyright to the post-1926, red-shirt wearing Winnie the Pooh, rather than the original shirtless Winnie the Pooh which entered the public domain. The still-shots, however, depict Winnie with a red plaid shirt. Disney has an alternative argument in that the film infringes on their copyrighted version. It is intriguing that the original Mickey Mouse is set to enter the public so Winnie the Pooh: Blood and Honey could be a litmus test for how Disney will approach these copyright and public domain conflicts .

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Photo from , Smithsonian Design Museum, 1926.

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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While many were observing the new year, intellectual property scholars and the artistic community were celebrating . January 1^st marks the expiration of most jurisdictions’ copyright terms. The previously copyrighted works enter the public domain, free to use and copy. In 2022, A. A. Milne’s Winnie the Pooh, among other famous characters like Felix Salten’s Bambi, entered the U.S. public domain. Already, versions of the beloved teddy bear are making rounds on , with celebrity even introducing his own “Winnie-the-Screwed” book in an ad for Mint Mobile.

Though the expansion of the public domain is cause for celebration, the honey-loving bear was already freely available for use in Canada since 2006. Works enter the public domain on a country-by-country basis, depending on the jurisdiction’s laws. Canada currently maintains a shorter copyright term than the U.S, set at . In contrast, generally subsists for 70 years after the death of the author or 95 years after first publication for works-for-hire. In other words, all works of corporate authorship first published in 1926, such as Winnie the Pooh, did not become freely available to use in the U.S until the end of 2021.

Copyright terms were not always this long. The U.S.’ first established a copyright term of 14 years, with an optional 14-year renewal period for living authors. This term was eventually extended to 28 years (with a 28-year renewal option) by a , then even further to 50 years from the author’s death in . Lobbying by the American entertainment industry, especially Walt Disney Co, led to the enactment of the , which not only increased U.S. copyright terms but applied them retroactively. Under the former legislation, Winnie the Pooh was to enter the public domain in 2006, 50 years following A. A. Milne's death, but the Extension Act delayed its entrance by 16 years.

The mismatch between copyright terms amongst jurisdictions poses various problems, especially in our digital age. While the public was free to use and copy Winnie the Pooh’s image in Canada long before January 1, 2022, they had to be careful not to make their works accessible in the U.S. or other jurisdictions such as the where the work was still protected by copyright. Though the Berne Convention for the Protection of Literary and Artistic Works, worldwide, attempted to provide some standardization by mandating a minimum copyright term of 50 years after the author’s death, countries like the U.S. have adopted longer terms and ignore the “rule of shorter term”, which provides that the term of copyright in a work created in a foreign country may not exceed the term received in its origin country.

While U.S. copyright terms remain one of the world’s longest, this will soon change due to the (CUSMA), which came into force on July 1, 2020. , Canada has until the end of this year to extend their term of copyright protection to 70 years after the author’s life, in harmony with the U.S. This requirement has garnered much controversy, as user rights advocates are concerned that it will lead to a 20-year gap of materials entering the public domain, significantly restricting access to works. In response to these concerns, Innovation, Science and Economic Development Canada released a noting several limitations and accompanying measures that Canada may choose to adopt to mitigate any potential harms of term extensions.

What does this mean for Winnie the Pooh? As it has already entered the public domain, any changes to copyright terms will not retroactively affect the bear’s status. However, it is important to note that the Winnie the Pooh available for use differs from Disney’s version, which is still under copyright and protection. Only the characters and stories from A. A. Milne’s original 1926 works are freely available. As author Tim X Price , “Red shirt on the bear, artists beware. If nude he be, your bear is free.”

Although Disney did not protest Winnie the Pooh’s entrance into the public domain, some intellectual property experts expected the corporation to lobby for extended copyright terms, as it has successfully done in the past. Granted, the rise of the Internet has , as empowered grass-root organizations and the public fight back against such efforts. Nevertheless, if Disney were to revive its lobbying efforts, it would likely be soon as the Steamboat Willie version of its beloved mascot, Mickey Mouse, is set to enter the public domain on January 1, 2024.

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The public domain as the “storehouse of the raw materials of creative expression, freely available to all.” Integral to��the copyright system, access to the public domain facilitates��the spread of knowledge as well as innovation, artistic freedom and more. Furthermore, access to the public domain should ideally allow for dialogue and the debate��of various ideas. Some believe in “a public domain that reflects and protects the dialogic processes of culture on the face of increasingly restrictive intellectual property structures.” ��compare it to freedom of speech, claiming that “both the public domain and the principle of free speech construct, or aim at constructing, a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle.” No matter what concept you ascribe to, however,��dissuading��editors from publishing newly edited versions of Mein Kampf runs counter to the��spirit of a robust��public domain. What is important here is not the unrestricted availability of the manifesto as a symbol of humanism-contradicting��ideologies, but rather the unrestricted access��to��a pedagogical tool that can spark��dialogue through commentaries and annotations, and the contradictions or lies these notes can highlight.

Mein Kampf’s history after Hitler’s death also justifies a reedited version of the manifesto. Having inherited the rights over the book from the Nazi leader’s estate, the State of Bavaria was able to the copying and printing of new editions in all of Germany. Considering the historical and legal context, that decision was understandable, but ultimately incompatible with the copyright system.�� The public domain plays a crucial role in the of intellectual property, a system defined by monopolies and exclusive rights. By preventing further publications, the State of Bavaria used this very system as a tool for censorship, when the systems'��primary goal is actually to . If the public domain is indeed to act as a balancing sphere, then its respect calls for the existence of an annotated, explanatory version of Mein Kampf as opposed to yet another form of censorship.

The reediting of Mein Kampf is even more relevant in today’s context than it ever was. Once it falls into the public domain it will be available to anyone and everyone via the Internet. The digitalization of our society is an to the access of the public domain, but it also makes ideas even easier to propagate. The State of Bavaria’s ��to limit the distribution of Mein Kampf in other countries have been mostly unsuccessful, as Hitler’s book has become quite popular in certain regions of the world, including��the . Mélenchon was right to say that , and concerns coming from the propagation of Nazi ideology��in an already fragile Europe are legitimate.��The counteracting existence of a pedagogical,��annotated version of the manifesto, however, will be more than necessary to fight the possible misuse of Mein Kampf and explain the pitfalls and horrible consequences that can arrive from such a point of view.

Allowing the publication of Mein Kampf may seem counter-intuitive, as no one can deny the dangers of the manifesto’s ideology. We cannot deny, however, that the book is part of our global history and��heritage. The public domain plays an essential role in��the ��by refusing to��edit��out��historical lows so that we can avoid repeating the��mistakes of��the past. Its purpose is to let us grow as a society, through access to��knowledge.��By not making a distinction between immoral and moral works, the public domain has decided to stand by the belief that “.”

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

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This summer, two proceedings were commenced in New York and California against Warner/Chappell Music, which had to “Happy Birthday to You” in 1988 and collects over a million dollars annually in royalties for the use of the song. Just last month, U.S. District Judge George H. King let the case proceed in , dealing first with the issue of whether Warner/Chappell owns copyright in the song.

No doubt the plaintiffs have read the published by Robert Brauneis, professor of law at George Washington University Law School, contesting copyright in “Happy Birthday to You” through an extensive analysis of evidence spanning nearly 120 years. There is no contention that the melody of the song was authored and first published in 1894 by two sisters, Mildred and Patty Hill, both teachers who put together a collection called “Song Stories for the Kindergarten”. The melody of what is now known as “Happy Birthday to You” was published in this collection under the title and lyrics “Good Morning to You.” What is less clear is who first combined the melody of “Good Morning to You” with the “Happy Birthday” lyrics, authoring the song as we now know it. This combination of the melody and new lyrics constitutes a new derivative work, itself subject to U.S. copyright.

Brauneis’s study challenges the subsistence of copyright in “Happy Birthday to You” on two main grounds. First, the evidence to support the notion that Mildred and Patty Hill were the ones to combine their melody with the “Happy Birthday” lyrics is not sufficient to find that they are the authors of the derivative work, “Happy Birthday to You.” If they are not the authors of this new work, then the 1935 copyright registration on which Warner/Chappell bases its claim to ownership is unauthorized and invalid. Second, even if the song was properly registered in 1935, copyright would have expired 28 years later, unless it were validly renewed. Brauneis contends that the renewal filed in 1962 only covered a particular arrangement of the song, and not the music and lyrics themselves.

Copyright currently offers some of the broadest protection for intellectual property, much longer than the term for patents, and for a much broader range of works and activities than trade-mark law covers. It certainly seems absurd, , that you would need permission or a licence from Warner/Chappell “if you posted a video of your kid’s first birthday on the Web.” This absurdity was cited by Justice Breyer of the U.S. Supreme Court in his dissenting opinion in , the case that ruled the retroactive twenty-year extension of copyright protection in the United States to be constitutional.

What significance has this saga for Canadian copyright law? If Mildred and Patty Hill are the joint authors of “Happy Birthday to You,” copyright protection for the song – on the assumption that the combination of tune and lyrics would, as in the US, have a separate – would have expired in 1996, 50 years after the death of Patty Hill, the work’s last surviving author. Even if copyright subsisted, a YouTube video of little Larry’s first birthday would likely be permitted under the new exception for User Generated Content enacted in 2012 by the . In that year, the Supreme Court of Canada also made it clear that users have rights, and these rights must be broadly interpreted. Much of the recent discussion of user rights has focused on fair dealing and the other exceptions to infringement in the Copyright Act. “Happy Birthday to You” serves as a reminder that the term of copyright and its expiry are also integral to the maintenance of the balance in promoting the dissemination of creative work while generating incentives for creators. When copyright protection extends so far beyond the life of the author, who really stands to benefit from these incentives? Perhaps the author’s descendants, but more commonly, a corporate owner like Warner/Chappell, one of the largest music publishers in the world.

Nevertheless, if the convoluted history of this simple song can be unwound and Warner/Chappell’s claim to copyright in “Happy Birthday to You” is defeated, the movement to restrict the term of copyright will lose one of its best, and certainly its most popular, poster children.

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The����filed in US court is between the Sherlock Holmes��aficionado����and the��. The character of Sherlock Holmes appears in 60 original novels by Doyle, 10 of which are still protected by American copyright law, rights that are owned by the Estate.��Klinger, who has written numerous Sherlock Holmes books, is pursuing an action to have the Sherlock��Holmes character declared to be in the public domain, and as such usable by any author without license from the Estate.��The Estate is maintaining that the character of Sherlock Holmes is only complete when considering all 60 works, and as such is still protected in America by copyright.

Copyright law varies from country to country, but all systems acknowledge that for copyrights to be effective, they must extend beyond��verbatim reproduction. A continuing area of debate is just how far��that protection��extends. Canadian law extends copyright to characters who are sufficiently��distinctive, thorough and complete��().��For obvious reasons the law will not extend protection to generic, stock characters.��This doctrine allows authors to����from being appropriated and used in other works.

One issue that flows naturally from this limit on the scope of copyright protection is the question of how developed must a character be to cross from the "generic" into the "distinct" and attract protection? While the precise line is still debated, in my opinion, a character such as Sherlock Holmes would be sufficiently developed to attract protection. What complicates the case of Sherlock Holmes is that out of the 60 stories written by Doyle, only the last 10 are currently still covered by copyright. The issue that remains to be resolved is whether Sherlock Holmes is a complete character from the 50 works no longer protected or if the last 10 works are required to complete his character.

The Estate argues that a 'flat' character is one that is fully developed in a single story and then placed in various situations in future works. While that character may be sufficiently developed upon initial introduction to attract protection, that protection is not extended by placing that character in subsequent works. The copyright clock runs from their initial introduction. In their view, that is contrasted by Holmes, whom they see as a complete character only when all 60 stories are��considered. In coming to this conclusion, they identify various story points present in the 10 protected books that they see as material to the character of Holmes; points expanding on his past, present, and future. They see it impossible to disentangle these protected works from the unprotected ones.

Klinger submits that the Holmes character is complete from the 50 unprotected works, and that the last 10 books only place the character in new situations. The Estate counters that this line of reasoning proposes to split Holmes into two characters: one public domain character from the 50 works, and one protected character from the complete 60 works.

Prediction

If I could decide the case, my decision would hinge on when Holmes was a sufficiently��constituted��character��to attract copyright protection. I don't believe it would make sense to take all 60 stories on their face as contributing materially to the character. If that were so, one could argue that every mention of a character contributes to them, as it is one more scenario that demonstrates their character and behaviour. In my view, the clock on protection of a character begins when that character is sufficiently constituted to attract protection. In Canada, that would be when the character is sufficiently��distinctive, thorough, and complete.¹ Any other interpretation would allow rightholders to continually extend the copyright of a character by��adding��additional��detail��to them by placing them in new situations. This would effectively extend copyright protection beyond its original intention, and tip the balance towards rightholders and away from users. However, we will have to wait and see how the American court decides in the case of Sherlock Holmes and the Adventure of the Copyright Court.

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has been the forefront organization within the United Nations (UN) dedicated to develop a balanced and accessible international Intellectual Property (IP) system. Although it was established in 1967, its history stretches back to one hundred and thirty years, to the treaties of Paris and Berne. Today, the role of WIPO is uniquely influential in setting innovation policy worldwide.

Professor James Boyle in his on “A manifesto on WIPO and the future of Intellectual Property” reflects his views on international IP policy and how the World Intellectual Property Organization (WIPO), as an organization, can help to make the indispensable changes required. Boyle argues that IP laws are “legal sinews” in this information age affecting everything from a price of a drug to patterns of international development, communications, internet etc.�� They are not an end in themselves, as the rules create more room for innovation and creativity and stresses that these rights should be set at the correct levels by interpreting the rules in a proportionate manner.

Boyle recalls that WIPO’s is to harmonize IP laws internationally but from the eyes of United Nations Organization (UN) it is even broader—to promote creative intellectual activity and facilitate the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development. This leads to the argument that fundamental changes need to be made in the role and attitude of the organization to serve its real goal. Boyle proposes possible approaches to achieve these goals.

The balance between the public domain and realm of property has been lost since IP rights have expanded exponentially. The contemporary attitude seems to be that the public domain should be eliminated and therefore IP policy is in the sway of a maximalist rights culture.�� Boyle suggests that maximalist agenda is not a good policy for even the developed world as it represents the interests of a narrow range of businesses and with very little democratic scrutiny. It would therefore be a tragedy for such a UN agency to adopt the narrow and biased maximalist rights culture.

The maximalist rights culture to me is one step forward and two steps backward as it tends to take away more from society which requires access to educational, cultural and social knowledge. It’s inclined more towards a rigid legal framework with very little space for maneuvering innovation. Having such a strong rights culture is detrimental in the long run, which was not the intention of the framers of the policy who decided the term of protection of the author or inventor and their work appearing in the public domain. Adopting a maximalist rights culture will leave some of the developing counties soaked to the skin and therefore the relationship of innovation and public domain should be symbiotic.

Although TRIPS and WIPO make claims for flexibility, the push has been to develop TRIPS plus reforms in developing countries through bilateral or regional agreements. These reforms have been an elephant in the room, as some of the developed nations have made special arrangements with their trading partners and so the “one size fits all” mantra for the International IP policy has been widely condemned in both developed and the developing nations.

Boyle goes on to explain that WIPO also presides over the harmonization of the . Communications technology affords the capacity of duplicating easily, and has created many piracy problems and unauthorized distribution. But the use of strong IPRs to prevent these activities presents another risk – it hampers the ability of the Internet to encourage and distribute innovations and culture worldwide. The Internet should be regarded as a true democratic form and IP rules need to embrace this fact. The current IP system does not adequately address certain pressing human problems.�� If pharmaceutical patented medicines wouldn’t be able to supply adequate medicines for the global poor, it is not a criticism of drug companies but of the belief that the patent system is the only way to produce innovation.�� Therefore WIPO should be more hospitable to proposals that attempt to reform, but it is tragic that it has taken more than a century for us to return to alternative approaches for encouraging innovation such as state sponsored prize systems.

Boyle views IP policy reforms through the lens of environmental policy. Just as sustainable development was the criterion from the environmental protection perspective, we need to have balance between right and the pubic domain in IP policy. This argument has implications far beyond WIPO. To abandon the tunnel vision of the maximalist rights culture, Boyle proposes seven principles: balance, proportionality, appropriate development, participation and transparency, openness to alternatives, embracing the net as a solution and neutrality. Boyle concludes that although the trade negotiations have become the preferred arena for expanding rights still further, these trends should be reversed for international, informed, and democratic debates. WIPO's role in that debate is a central one and it should embrace that role, rather than seeking to jump onto the bandwagon of ever-expanding rights.

The criticism to Boyle’s manifesto is twofold.�� First, it does little to classify these rights from the standpoint of different developing nations. To use the words of , the black and white categorization of developed and developing nations ignores technological heterogeneity between developing countries. Second, the manifesto should have touched upon the issues of hegemonic international IP policy and how can a neutral body (not one in which the members have a conflict of interest) arrive at a possible solution for framing international IP policies.

In a Jeremy DeBeer posits a rather more optimistic view in light of the General Assembly of WIPO unanimously adopting forty-five recommendations regarding IP and development in 2007.�� This is being viewed as an attempted paradigm shift for IP policies in the twenty-first century. Its key demand is to re-establish the public policy aspects of IP rights, emphasizing that the protection and enforcement of IP cannot be an end in itself.�� This shift alleviates some of Boyle’s concerns towards hegemonization in IP Policy making. Thus, rejects a one-size, (especially an extra-large size), model of global IP law.

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Since its first significant formal uses - in the 1896 decision of and the United States' 1909 - the term "public domain" has become a key component of the North American IP legal regime. Over the last century, the "public domain" concept has both facilitated as well as circumscribed the incorporation of prior creative works into new artistic products. Today, the popularity of art forms that depend on reshaping previous works (such as the 2008 mash-up, , which combines the musical compositions of Elton John and Phillip Glass, or the 2007 post-modern biopic, , which recreates shot-for-shot scenes from the 1967 documentary, ) makes questions about the nature, content, and practical application of the public domain more relevant than ever.

With the preceding background in mind, Julie Cohen's article, , offers a valuable contribution to IP law discourse by investigating the jurisprudential and theoretical treatment that the public domain has received in North America. The section of Cohen's article that traces the development of case law and legislation pertaining to the public domain - particularly in the American legal system - leads to a two-part conclusion. First, Cohen observes that the modern notion of a "public domain" has been founded on the traditional "public lands" concept, derived from Western property law. Second, the author suggests that the association between these concepts has largely occurred as a result of the specific, unplanned, contingent unfolding of American legal history.

With regard to her consideration of the academic theory that surrounds IP protection and the public domain, Cohen's analysis again contains two parts. First, she characterizes the leading theoretical perspectives on this issue as either being aligned with a cultural stewardship argument (encouraging the commodification of creative works) or a conservancy argument (opposing commodification). Authors who Cohen assigns to the former category generally include proponents of copyright expansion, such as and . Authors who she assigns to the latter category tend to favour public domain expansion, such as , , and . The second part of Cohen's analysis is concerned with promoting a new figurative representation of the public domain - the cultural landscape model - as an alternative to the "public lands" metaphor she identifies as being a detrimental premise common to both cultural stewardship theory and conservancy theory.

As a whole, Julie Cohen's article represents a worthwhile attempt to bring the theoretical structure of IP policy closer in line with the practical interests of different social actors who participate in the process of sharing creative works. As an exercise in further engaging the debate about how “public domain” concepts could be used to articulate an IP framework that was both economically and culturally viable, the following questions might be posed in relation to each of the historical and theoretical components of Cohen's analysis:

A.�� Regarding her historical critique, it is possible to ask whether United States' adoption of the “public lands” model does, in fact, deserve to be minimized for having been a product of contingent legal history. To the contrary, an argument could be made that the survival of this model (in contrast to competing U.S. models, and in the European context) suggests that it possesses a unique conceptual soundness or integrity. Furthermore - given that both the cultural stewardship and conservancy theories discussed by Cohen fundamentally depend on the “public lands” metaphor – it is possible to ask whether this commonality actually underscores the usefulness of the metaphor itself, rather than being a basis on which to criticize each of the (otherwise) distinct theories.

B.�� Addressing the alternative cultural landscape model that Cohen introduces in her article, a question arises as to whether one of her key policy��recommendations (that creative works should be partially and differently protected) encourages the incorporation of undue complexity or subjectivity into the design of a “reformed” IP regime. If – according to Cohen - courts are rarely able to employ sophisticated, symbolic logic, but rather tend to follow a simpler process of reasoning (exemplified by their deduction of legal principles from preexisting metaphors), how can the judiciary be trusted to implement a more nuanced, mosaic, subjective IP regime of the kind that she, Boyle, and others have advocated?

Beyond exploring the above types of questions, which specifically emerge from the recent work of Julie Cohen, additional directions for conceptualizing a modern, effective “public domain” may also be identified in such forthcoming articles as “The Politics of Global Information Sharing: Whose Cultural Agendas are Being Advanced?” by Kathy Bowrey. Within the early 21st century context – when the dissemination of artistic works is subject to the aggressive and divergent influences of corporate demands for wider IP protection, on one hand, and technological and artistic incentives for sharing cultural products ever more freely, on the other hand – considering new ways in which the concept of the “public domain” might itself be reworked is a valuable area of study for anyone who is interested in how the exchange of creative ideas in society stands to benefit the individuals, organizations, and communities who participate in this process today, as well as those who will participate in the future.

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Few propositions are more frequently asserted in contemporary copyright discussion than the proposition that copyright is a balance between authors and users - a balance (as some like to say) between the incentive to create and the imperative to disseminate works of authorship. argues that the concept of balance cannot support the weight it is asked to bear in copyright jurisprudence, and that we should think of copyright less as a "balance" between authors and users than as a "dialogue" between authors and users. "Dialogue" is a metaphor more appropriate than "balance" to structure our interpretation of copyright law and of its purpose.

The idea of dialogue presides over an interpretation of (a) copyright subject matter (i.e. the “work”) as a communicative act, (b) certain copyright exceptions as user's rights integral to the copyright system, and (c) the public domain less as a matter of values or weights to be placed on a balance, than as a site of, and condition for, a network of communicative acts in which both authors and users participate. In short, the point is that, at least in one of its fundamental determinations, the public domain is less a scope problem than a subject matter problem. Whereas the metaphor of balance orients contemporary copyright discussion towards a formulation of the public domain as a distributional scope issue, it would be more appropriate to deploy the concept of the work as a communicative act in order to characterize the public domain as a subject matter issue in dialogical terms. It is the commodification of the work, rather than the mere distribution of its commodified value, that is the fundamental obstacle in the way of a conception of the integral role of the public domain.

Professor Drassinower's article “From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law” is available for download on SSRN .

The post From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law appeared first on IPOsgoode.