PDIA CP - Michigan 7 2024 BFHR

PDIA CP --- BFHR
Notes
What is the Public Domain?
What's in the public domain?
Public domain is a frequently used term in copyright parlance, yet it isn't defined in copyright statutes. This article provides insight into when content is in the public domain under copyright law, from both the U.S. and international copyright law perspectives.
This information will help guide you determine when you need to obtain copyright permissions. To learn how to make informed copyright decisions relating to permissions and the public domain, see our Copyright Leadership Certificate program.
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WHAT IS THE PUBLIC DOMAIN?
The phrase "public domain" (PD) isn't in the U.S. Copyright Act. It is, however, commonly used to refer to content that isn't protected by copyright law.
Works that are in the public domain may be used freely, without obtaining permission from or compensating the copyright owner.
HOW DO WORKS ENTER THE PUBLIC DOMAIN?
Public domain works, or content that isn't protected by copyright law, may not be protected for a variety of reasons, including the following:
The duration of copyright in the work has expired — In the U.S., for example, the copyright in a book expires 70 years after the death of its author. The minimum duration of copyright protection as set out in the leading copyright treaty, the Berne Convention, is life-plus-fifty but many countries now have a life-plus-seventy duration as in the U.S. (See the section below on Public Domain in Other Countries.)
The work was produced by the U.S. federal government — In the U.S., works produced by the federal government don't have copyright protection. However, a work produced by a consultant or freelancer to the government may have protection and the original copyright owner may transfer that copyright to the government. Note that in other countries, such as Canada, there is copyright protection in federal government works.
The work isn't fixed in a tangible form — A work such as a speech, lecture or improvisational comedy routine that hasn't previously been written or recorded in any manner isn't protected by copyright and therefore is in the public domain.
The work didn't include a proper copyright notice prior to 1 March 1989 — In the U.S., this doesn't apply to works created after 1 March 1989, when a copyright notice became no longer mandatory to protect a work. However, prior to that date, notice of copyright was necessary on all published works. Without this notice, the work went into the public domain. Most countries don't have a copyright notice requirement. Note that Berne member countries cannot have any requirements such as a copyright notice in order for authors to have copyright protection in their works — that's always automatic in Berne Convention countries.
The work doesn't have sufficient originality — Examples of works that may not have sufficient originality to be eligible for protection by copyright include lists or tables with content from public documents or other common sources.
EXAMPLES OF PUBLIC DOMAIN WORKS
In terms of copyright protection, works in the public domain in the U.S. generally include the following:
U.S. Federal legislative enactments and other official documents
Titles of books or movies, short phrases and slogans, lettering or coloring
News, history, facts or ideas (note that a description of an idea in text or images, for example, may be protected by copyright)
Plots, characters and themes from works of fiction
Procedures, methods, systems, processes, concepts, principles, discoveries or devices
Note that the above list of works may be protected by other areas of intellectual property such as patents or trademark protection.
The net benefit is pretty limited right now, but I wanted to get the CP out. I may try and do some update work on public domain good/bad in the next few days. Let me know if you have any questions about the CP.
--Forslund
Top Shelf
1NC --- Shell
Text: The United States federal government should initiate a prior, binding public domain impact assessment regarding whether the United States federal government should [do the plan]; and implement its policy recommendations.
The cp is a BINDING assessment required for the plan --- it ensures protection of the public domain and spills-over to future protections
Reynolds ‘13
(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)
Fourth, and the subject of this chapter, another situation in which the precautionary principle could be usefully applied is at the point at which proposals for intellectual property reform are introduced. The application of the precautionary principle in the context of intellectual property reform could require legislative bodies, when evaluating proposed amendments to their intellectual property legislation or new intellectual property legislation, to explicitly consider the impact of any such proposals on the public domain. In the following section, I will consider one possible instantiation of the precautionary principle in the context of intellectual property reform, namely in the form of a PDIA. 3) Applying the Precautionary Principle in the Context of Intellectual Property Reform: Towards a Public Domain Impact Assessment In considering how the precautionary principle might be applied in the context of intellectual property reform, it is informative to look to existing works that have advocated for an approach to intellectual property reform that could be characterized as “precautionary.” One commentator, Thomas F Cotter, has explicitly suggested the application of the precautionary principle in the context of copyright, stating that “policymakers would be wise to incorporate something analogous to the Precautionary Principle, in order to minimize the risk that aggressive copyright laws will decimate the cultural environment.”46 Cotter proposes several ways in which the application of the precautionary principle could impact intellectual property reform. First, he suggests that the principle could “shift the burden of justifying a proposed, but potentially harmful, rule to the affected industry.”47 Cotter states that the burden of proof could vary depending on factors such as the “magnitude of the potential harm, its irreversibility, and the current state of scientific understanding of its probability.”48 Second, Cotter suggests that “advocates of further copyright expansion” could be required to demonstrate, through “some meaningful degree of proof that further expansions are necessary to maintain incentives, and are likely to do no harm to the other relevant goals of copyright.”49 Modifying the intellectual property reform process in such a manner as to require evidence demonstrating the probability and seriousness of harm that may result to the public domain from the adoption of proposed reforms, and demonstrating the consistency of proposed reforms with the goals of intellectual property laws, could be of significant benefit to the public domain. It is unclear, however, how the burden shift suggested by Cotter might function should multiple industries propose the same reform or should reform be proposed by parties other than industry. As well, questions could be raised as to whether it is in the public interest to permit the industry proposing legislative reform to act as the party providing evidence justifying this same reform. Cotter, acknowledging the potential for abuse inherent in such an approach, notes that “affirmative findings [could be required] from the Copyright Office or from Congress.”50 Building on Cotter’s approach, I will conclude this chapter by proposing another possible instantiation of the precautionary principle in the context of intellectual property reform. Specifically, I will propose the creation of a PDIA. I envision the PDIA as a process through which proposals for intellectual property reform, prior to their enactment, are evaluated by an independent review panel in order to determine their potential impact on the public domain. Given the space constraints of this edited text, I will not describe the PDIA in exhaustive detail. Instead, I will introduce the framework of the PDIA, leaving the specific details to be expanded upon in a future work. My proposed PDIA is modeled on the Canadian Environmental Assessment Act (CEAA).51 The CEAA can be seen as an instantiation of the precautionary principle in the context of Canadian environmental law. As in the case of intellectual property, in which private rights are balanced with the public interest, the CEAA attempts to achieve a balance between economic development and environmental concerns. I envision the PDIA process as an open, public process, conducted by an independent review panel. Individuals, groups, and industry could have the opportunity to submit documents and provide oral testimony to the review panel with respect to the impact of certain legislative proposals on the public domain. Documents and testimony under consideration by the panel could then be published online, giving the public the opportunity to examine and comment on the submissions, the evidence contained in the submissions, and the methodology employed by parties that have submitted evidence.52 Structuring the process in such a manner, as opposed to relying on the party desiring a specific reform to provide evidence justifying that reform, reduces the risk that the party desiring the specific legislative reform might, as Cotter states, make “rosy predictions” or engage in “sleight-of-hand.”53 As is the case in the procedure set out under the CEAA, a number of mandatory factors could be considered under the PDIA process, including:54 - The projected impact of the proposed legislative reform on the public domain, including the cumulative effects on the public domain that are likely to result from the proposed reform in combination with existing legislation or other reforms that have been or will be undertaken. - The significance of this impact. - Comments from the public received during the course of the PDIA process. - Measures that might mitigate any adverse impacts of the proposed legislative reform on the public domain.5 Evidence demonstrating that the proposed reform will (or will likely) achieve the desired result.56 - The impact that the proposed reform might have on groups.57 While the factors noted above may already have been considered by bureaucrats and politicians in the legislative drafting process,58 several advantages flow from formalizing their consideration in a public manner through a PDIA. First, formalizing these factors and mandating their review through a PDIA would ensure that each factor is explicitly considered. Second, formalizing these factors and mandating their review through a PDIA would increase openness and transparency within the legislative process, ensuring that the factors are not simply analyzed by bureaucrats and politicians, but that they are seen, by the general public, to have been analyzed. Third, formalizing these factors and mandating their review through a PDIA would create a record of evidence that could be helpful for courts and others seeking to interpret the legislation. This record could also be relied on in future years in seeking to further reform, develop and shape intellectual property legislation and policy. The consequences of determining, through the PDIA process, that proposed legislative reforms might negatively impact the public domain could vary. One possible approach could be for legislative bodies to bind themselves to the determination arrived at through the PDIA process.59 This approach would represent the strongest instantiation of the precautionary principle of the options outlined in this chapter. Under this approach, if the PDIA process concludes that proposed intellectual property reforms might negatively impact the public domain beyond a certain threshold (for instance, might have a “severe impact” on the public domain), the legislative body would not be permitted to pass the legislation as proposed.
[insert internal net benefit --- public domain good]
Solvency
2NC --- Solvency
The cp solves --- independent review PRIOR to enactment of the plan is necessary to protect the public domain
Reynolds ‘13
(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)
D. Conclusion
This chapter assumes the importance of the public domain. If this assumption is correct, then it is necessary to explore different ways through which the public domain can be protected. Concepts, tools, and techniques developed by the environmental movement and drawn from environmental law and policy-making can play (and have played) an important role in this project. In this chapter, I have considered whether one concept originally developed in the context of environmental law – namely the precautionary principle – might usefully be applied in the intellectual property context in order to protect the public domain. I have suggested both that it is appropriate to apply a precautionary principle in the intellectual property context; and that the precautionary principle could be applied in the intellectual property context at the point at which proposals to reform intellectual property legislation are introduced. In the final section of this chapter, I have drawn upon the CEAA to suggest one possible instantiation of the precautionary principle in the context of intellectual property reform. Specifically, I have proposed the creation of a PDIA: a process through which proposals for intellectual property reform, prior to their enactment, are evaluated by an independent review panel in order to determine their potential impact on the public domain. The adoption of such an approach by legislative bodies would signal broad acceptance of the idea that the public domain is important; that it is valuable; and that, like the environment, action must be taken to ensure that it is protected. While the adoption of a Electronic copy available at: https://ssrn.com/abstract=2347922 22 PDIA may not prevent legislative bodies from enacting legislation that negatively impacts the public domain, it would, at a minimum, help to clearly articulate what is at stake (and what might be lost) should proposed reforms to intellectual property legislation be enacted into law.
ANY conflicts only cause minor modifications --- boosts solvency
Hunt ‘6
(Paul, Professor and United Nations Special Rapporteur on Health, and Gillian MacNaughton, Senior Research Officer – Human Rights Centre, University of Essex, “Impact Assessments, Poverty and Human Rights: A Case Study Using The Right to the Highest Attainable Standard of Health”, 5-31, http://www.who.int/hhr/Series _6_Impact%20Assessments_Hunt_MacNaughton1.pdf)
The purpose of this report is to contribute to discussions on human rights and impact assessments. In recent years, there have been increasing calls for governments to perform human rights impact assessments prior to adopting and implementing policies, programs and projects. Yet to date, there has been little published on methodologies or tools to aid governments in undertaking human rights impact assessments. This report examines some recent developments on human rights impact assessment and, using the right to health as a case study, proposes a methodology for incorporating human rights into other forms of impact assessment. The aim of human rights impact assessment in this study is to aid governments in complying with their international and national human rights obligations. In general, impact assessment is a process used to predict the future consequences of proposed policies, programs and projects and thereby to provide governments with opportunities to improve them before they are adopted or implemented. In the context of human rights impact assessment, the process aids governments in choosing between alternatives, making modifications, and providing for mitigating measures in order to respect, protect and fulfill human rights. Thus, human rights impact assessment helps governments to adopt and implement policies, programs and projects that will best meet their obligations to take deliberate and concrete steps toward progressive realization of human rights.
Review improves decision-making --- CP causes better policy
Wexler ‘8
(Lesley, Professor of Law – Florida State University and Former Debater – University of Michigan, “Human Rights Impact Assessments: An Immigration Case Study”, Georgetown Immigration Law Journal, 22 Geo. Immigr. L.J. 285, Winter, Lexis)
In theory, review processes such as impact assessments and impact statements serve several important functions. Most obviously, these review processes generate information to educate both the public and policymakers. Supporters of the NEPA suggest that its combination of "information, transparency, and political accountability creates powerful pressures on agency decision-makers to avoid the most environmentally damaging courses of action, and to mitigate environmental harms when it is cost effective to do so." 65 The information created by review processes encourages decision-makers to reject or modify some proposed actions either because (a) these decision-makers' rational, technocratic values allow them to use the new information to come to a better decision or (b) these decision-makers' desire to avoid the ensuing public and interest group pressure encourages them to mitigate potential impacts. 66 The administrative or political burden of the review process may also deter the consideration or alter the contents of proposals likely to be subject to an extensive, contested impact statement. Outside of its influence on a particular government action, the cumulative effect of a review process helps inform the larger policy and public debate about an issue area by providing clear goals and creating easily identifiable and objective metrics to measure the attainment of those goals. 67 The information generated and decisions made can also guide the behavior of outside actors such as corporations and other governments. 68 Optimism about the theorized outcome of review processes should be tempered by the serious criticisms lodged by scholars and advocates. 69 In their worst incarnations, review processes produce low-value information at a high cost. Information overload can degrade the quality of action or cause paralysis by analysis. Similarly, some review processes emphasize procedure over substance, creating a mere hoop jumping exercise rather than a reasoned decision-making endeavor. In addition, rather than encouraging transparency, technocrats and other experts may quietly infuse their values into the [*295] assessments without disclosing such bias to the public. Finally, the prospective nature of most review processes tends toward massive one-shot information gathering exercises and thus fails to account for changes in dynamic environments. Despite such potential shortcomings, empirical and anecdotal evidence from the environmental context supports the value of impact statements. 70 While some of the value of review processes depends on optimal implementation, the lack of robust litigation and legislative options in the human rights arena warrants experimentation with new approaches. In fact, one of the lesser-noted benefits of a review process is its ability to generate information that improves decision-making outside of its immediate context.
Review improves decision-making --- CP causes b

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