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The Digital Public Domain

 | 
Melanie Dulong de Rosnay
, 
Juan Carlos De Martin

I. Introducing the Digital Public Domain

1. Communia and the European Public Domain Project: A Politics of the Public Domain

Giancarlo Frosio

Texte intégral

  • 1 Johann Wolfgang von Goethe, cited in Martha Woodmansee and Peter Jaszi, ”The Law of Text: Copyrigh (...)

What am I then? Everything that I have seen, heard, and observed I have collected and exploited. My works have been nourished by countless different individuals, by innocent and wise ones, people of intelligence and dunces. Childhood, maturity, and old age all have brought me their thoughts, their perspectives on life. I have often reaped what others have sowed. My work is the work of a collective being that bears the name of Goethe.1

1The following chapter is an amended version of the Final Report of the Communia Network on the Digital Public Domain. The Report was undertaken (i) to review the activities of Communia; (ii) to investigate the state of the digital public domain in Europe; and (iii) to recommend policy strategies for enhancing a healthy public domain and making digital content in Europe more accessible and usable. As a result, together with the review of the definition, value and role of the public domain, the chapter will examine the challenges and bottlenecks impinging on the public domain. In addition, it will discuss the opportunities that digitization and the Internet revolution have been offering to the public domain as well as access to knowledge. Finally, general guidelines for a politics of the public domain will be drafted together with the sketching of a positive view of Europe with a stronger public domain. Each of the subjects discussed in this chapter are further developed and detailed in Annex II of the Communia Final Report.

1. What is the public domain?

  • 2 See James Boyle, ”The Second Enclosure Movement and the Construction of the Public Domain”, Law an (...)

2Defining the boundaries and inner meaning of the public domain is conducive to the aim of strengthening its protection and its promotion. There are many public domains that change in shape according to the hopes and the agenda they embody.2 The diversity of the Communia network has provided an opportunity to internalise this protean nature of the public domain. The outcome has been a comprehensive vision that projects the understanding of the European public domain in a global international dimension. This vision conveys the perception that the public domain is never a definition but instead a statement of purpose, and a project of enhanced democracy, globalised shared culture and reciprocal understanding. Communia has attempted to propel a process of definitional re-construction of the public domain in positive and affirmative terms. It envisions the public domain as having a very substantial element of attraction to aggregate social forces devoted to promoting public access to culture and knowledge.

  • 3 Pamela Samuelson, ”Mapping the Digital Public Domain: Threats and Opportunities”, Law and Contempo (...)
  • 4 David Lange, ”Recognizing the Public Domain”, Law and Contemporary Problems, 24 (1981), 147-81.

3The traditional definition regarded the public domain as a ”wasteland of undeserving detritus” and did not ”worry about ‘threats’ to this domain any more than [it] would worry about scavengers who go to garbage dumps to look for abandoned property”.3 This definitional approach has been discarded in the last thirty years. In 1981, David Lange published his seminal work, Recognizing the Public Domain, and departed from the traditional line of investigation. Lange suggested that ”recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain”.4 In January 2008, Séverine Dusollier reinstated that idea at the first Communia Workshop by speaking of a ”positively defined public domain”:

  • 5 Séverine Dusollier, ”Towards a Legal Infrastructure for the Public Domain”, paper delivered at the (...)

In legal regimes of intellectual property, the public domain is generally defined in a negative manner, as the resources in which no IP right is vested. This no-rights perspective entails that the actual regime of the public domain does not prevent its ongoing encroachment, but might conversely facilitate it. In order to effectively preserve the public domain, an adequate legal regime should be devised so as to make the commons immune from any legal or factual appropriation, hence setting up a positive definition and regime of the public domain.5

  • 6 Michael D. Birnhack, ”More or Better? Shaping the Public Domain”, in The Future of the Public Doma (...)

4The affirmative public domain was a powerfully attractive idea that propelled the ”public domain project”.6 Many authors in Europe and elsewhere attempted to define, map and explain the role of the public domain as an alternative to the commodification of information that threatened creativity. This ongoing public domain project offers many definitions that attempt to construe the public domain positively. A positive, affirmative definition of the public domain is a political statement, the endorsement of a cause.

  • 7 See The Public Domain Manifesto at the beginning of this volume; also available at http://publicdo (...)

5As The Public Domain Manifesto puts it, the public domain is the ”cultural material that can be used without restriction”, and which includes a structural core and a functional portion. The structural core encompasses the ”works of authorship where the copyright protection has expired” and the ”essential commons of information that is not covered by copyright”. The functional portion of the public domain consists of the ”works that are voluntarily shared by their rights holders” and ”the user prerogatives created by exceptions and limitations to copyright, fair use and fair dealing”.7

  • 8 James Boyle, The Public Domain: Enclosing the Commons of the Mind (New Haven: Yale University Pres (...)

6However, notwithstanding many complementing definitional approaches, consistency is to be found in the common idea that the public domain is the material that composes our cultural heritage. The public domain envisioned by Communia becomes the ”place we quarry the building blocks of our culture”, as put by James Boyle, the co-director of the Duke Center for the Study of the Public Domain, and a member of the Communia network.8 At the same time, the public domain is the building itself. It is, in the end, the majority, if not the entirety, of our culture. Therefore, the public domain must be free for all to use, and copyright expansionism is a welfare loss against which society at large must be guarded.

  • 9 See Lawrence Lessig, ”The Architecture of Innovation”, Duke Law Journal, 51 (2002), 1783-1801 (p. (...)
  • 10 See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom ( (...)

7The modern discourse on the public domain owes much to the legal analysis of the governance of the commons, that is, natural resources used by many individuals in common. Commons and the public domain are in fact two different things: the public domain is free from property rights and control whilst a commons may be restrictive. However, this kind of control is different than under traditional property regimes because no permission or authorisation is required to enjoy the resource. These resources are protected by a liability rule rather than a property rule.9 Free Software, Open Source Software and Creative Commons are examples of intellectual commons.10

  • 11 See Mark Rose, ”Copyright and its Metaphors”, UCLA Law Review, 50 (2002), 1-15; William St Clair, (...)
  • 12 See James Boyle, ”Foreword: The Opposite of Property?”, Law and Contemporary Problems, 66 (2003), (...)
  • 13 See Charlotte Hess and Elinor Ostrom, ”Introduction: An Overview of the Knowledge Commons”, in Und (...)
  • 14 See James Boyle, ”Cultural Environmentalism and Beyond”, Law and Contemporary Problems, 70 (2007), (...)

8Although the public domain and commons are diverse concepts, since the origin of the public domain discourse, the environmental metaphor has been largely used to refer to the cultural public domain.11 Therefore, the traditional environmental conception of the commons was ported to the cultural domain and applied to intellectual property policy issues. Under this conceptual scheme, the individual, legal, and market-based control of the property regime is juxtaposed to the collective and informal controls of the well-run commons.12 Environmental and intellectual property scholars started to look at knowledge as a commons—a shared resource, as defined by the Nobel laureate Elinor Ostrom.13 The environmental metaphor has propelled what can be termed as cultural environmentalism.14

  • 15 See also Communia, Survey of Existing Public Domain Competence Centers, Deliverable No. D6.01 (Dra (...)
  • 16 See Development Agenda for WIPO, http://www.wipo.int/ip-development/en/agenda; see also Séverine D (...)
  • 17 See Richard Owens, ”WIPO and Access to Content: The Development Agenda and the Public Domain”, pap (...)
  • 18 See Lawrence Lessig, The Future of Ideas: The Fate of The Commons in a Connected World (New York: (...)
  • 19 See Robert P. Merges, ”A New Dynamism in the Public Domain”, University of Chicago Law Review, 71 (...)

9In the last decade, we have witnessed the emergence of a new understanding of the public domain in terms of affirmative protection and the sustainable development of a common pool of resources, especially in the digitally networked environment. This enhanced understanding of the value of the public domain has been undergoing a multi-faceted evolution with academic, civic, institutional and more practical ramifications. Today, the Institute for Information Law at Amsterdam University, the Berkman Center for Internet and Society at Harvard, the Cambridge Centre for Intellectual Property and Information Law, the Nexa Center for Internet and Society at the Politecnico di Torino, the Haifa Center of Law and Technology, the Duke Center for the Study of the Public Domain, the Stanford Center for Internet and Society, and a variety of other academic centres devote a substantial amount of their time to investigate the proper balance between intellectual property and the public domain, as detailed by the Communia Survey of Existing Public Domain Competence Centers delivered to the European Commission on 30 September 2009.15 Several advocacy groups are committed to the preservation of the public domain and the promotion of a shared commons of knowledge including, among many others: the Open Knowledge Foundation, Open Rights Group, LaQuadratureduNet, Knowledge Ecology International, the Access to Knowledge (A2K) movement, Public Knowledge, and the Electronic Frontier Foundation. Civil advocacy of the public domain and access to knowledge has also been followed by several institutional variants, such as the ”Development Agenda” at the World Intellectual Property Organization (WIPO), setting specific policy recommendations to protect and strengthen the public domain.16 The WIPO efforts for the promotion of the public domain were presented at the fifth and seventh Communia workshops.17 In addition, developments in commons theory have been coupled by efforts to turn theory into practice. For example, Creative Commons and the free and open-source software movement have created a commons through private agreement and technological implementation.18 Again, private firms in the biotechnological and software fields, have decided to forgo property rights to reduce transaction costs.19 The issue of voluntary sharing, private ordering and contractually constructed commons was widely investigated at the first and second Communia conferences.

  • 20 See Stefano Rodotà, ”Se il mondo perde il senso del bene comune”, La Repubblica, 10 August 2010.
  • 21 See Charter of Fundamental Rights of the European Union, 18 December 2000, 2000 O.J. (C364), pp. 1 (...)

10The emergence and growth of an environmental movement for the public domain and, in particular, the digital public domain, is morphing the public domain into the commons. The public domain is our cultural commons: it is like our air, water and forests. We must look at it as a shared resource that cannot be commodified. As much as water, knowledge cannot be constructed mainly as a profitable commodity, as recently argued by Stefano Rodotà, one of the members of the Communia Advisory Committee.20 As for the natural environment, the public domain and the cultural commons that it embodies need to enjoy a sustainable development. There is also a need, as for the natural environment, to promote a ”balanced and sustainable development” of our cultural environment as a fundamental right that is rooted in the Charter of Fundamental Rights of the European Union.21 As we will detail later in this report, overreaching property theory and overly protective copyright law disrupt the delicate tension between access and protection. Unsustainable cultural development, enclosure and commodification of our cultural commons will produce cultural catastrophes. As unsustainable environmental development has polluted our air, contaminated our water, mutilated our forests, and disfigured our natural landscape, unsustainable cultural development will outrage and corrupt our cultural heritage and information landscape. A cultural development neglectful of the public domain, if not redressed, will negatively affect society at large in consequence of the loss of economic and social value that may be extracted from the public domain, especially from the digital public domain.

2. The value of the public domain for Europe

  • 22 Rufus Pollock, ”The Value of the Public Domain” (UK Institute for Public Policy Research, 2006), p (...)

11The public domain is a valuable global asset; a forward-looking approach would allow the extraction of considerable economic and, especially, social value from it. In particular, Communia asserts that open and public domain approaches can produce economic and social value, as spelled out at the first Communia conference, which was devoted to the assessment of the economic and social impact of digital public domain in Europe, and the second Communia conference. Unfortunately, so far this value has been left unattended. In addition, the intellectual property rhetoric has hidden the public costs of extreme propertisation of the public domain. Rufus Pollock has noted that the current paradigm ”binds us to a narrow and erroneous viewpoint in which innovation is central but access is peripheral”.22

12This imbalance should be redressed. This is far more relevant now because this disproportion between innovation and access prevents us from taking full advantage of the possibilities offered by the digital age. Digitization and internet distribution have multiplied the potentialities and opportunities offered by the use of public domain material. On one hand, digitization offers the opportunity to extract economic value out of the public domain by benefiting the public with free or inexpensive cultural resources. On the other hand, digitization may produce immense social value by opening society up to immediate and unlimited access to culture and knowledge. In addition, the economic and social value of the public domain is enhanced by the mass production capacities of the digital environment. A new peer-based culture of sharing is changing our cultural landscape through the revolutionary technological ability of multiplying references instantaneously and endlessly. Openness and access fuel this new culture of shared production of knowledge. Commodification and enclosure of the public domain threaten its growth and survival.

13The value of the public domain is a complex variable made up of many components. It is a source of value in both economic and social terms. In addition, value can be extracted from the structural and the functional aspects of the public domain. The contribution of the public domain can be assessed in positive or negative terms by estimating the economic and social loss of enclosure and commodification. The positive value of the public domain can be the effect of direct use, indirect use or reuse of public domain works, the application of public domain business models, its market efficiency or, again, its democratic function. In any event, social and economic value is always very much tangled up in the assessment of the riches of the public domain.

  • 23 See ibid., p. 5.

14As per the value of a work entering into the public domain or public domain effect, the revenue value is to be distinguished from the social value, as the economic utility generated for society.23 If, after entering into the public domain, a work is sold for €5 instead of the €10 charged previously, the social value of the work entering into the public domain will be €5. In addition, the social value of a work entering into the public domain will also include the deadweight loss of restricting access to a good that is spared to society. Finally, the assessment of the value of a work entering into the public domain must also take into account the value of reuse. Reducing the public domain or retarding the entrance of a work into the public domain shall deprive the community of the correspondent social value of developing derivative works or invention from the original cultural artefact. The value of reuse is a dynamic value that boosts society both economically and culturally.

15Practice is often more explanatory than theory. A few examples may help to pinpoint the value of the ”public domain effect”, the entrance of a work into the public domain, and other social and economic values that can be extracted from the public domain. In 2010, the works of Sigmund Freud entered the public domain in Italy. This event propelled the publication of 36 works by Freud in the first nine months of 2010 by ten publishers. This is an astonishing figure if compared with the previous years: from 1999 to 2009, only 16 works by Freud were published in Italy.24

  • 25 See Massimo Nosetti, ”Il maestro dell’organo fuori dal copyright”, in Il Giornale della Musica, No (...)

16Secondly, 2007 saw the end of the copyright protection of the works of Louis Vierne, a renowned French organist and composer. Upon expiration of Vierne’s copyright, new editions of Vierne’s works finally corrected many mistakes and inaccuracies included in the original scores. Vierne was born nearly blind, and such mistakes were obviously due to his wobbly handwriting. Up to the expiration of Vierne’s copyright, none of the publishers tried to correct the mistakes, because the copyright laws prevented them from editing the original works in any way.25

  • 26 See Paul A. David and Jared Rubin, ”How Many Scanned Books on the Web?” (SIEPER Policy Briefs, Dec (...)

17Similarly, the film It’s a Wonderful Life, directed by Frank Capra, fell into the public domain in 1974 after the copyright holder failed to renew it. The film had been largely ignored since its original release. However, in 1975, a television station discovered that the movie was freely available and ran it during the Christmas period because its climax comes on Christmas Eve. Within a few years, It’s a Wonderful Life was being shown on television stations across the United States every Christmas. The success was terrific. Watching the film at Christmastime became a cultural tradition in the US.26

  • 27 See Pollock (2006), p. 8.

18Together with the value that may be immediately extracted from the entrance of a work into the public domain, a public domain approach to knowledge management may be a source of value on many different levels. Although a quantitative measurement is impossible, some quantitative conclusions on the value of the public domain can be inferred by examining a few examples of public domain approaches to knowledge production.27 In general, these examples show the role and the value of the digital public domain in allowing new business models to emerge.

  • 28 See, for example, Felix Oberholzer-Gee and Koleman Strumpf, ”File-Sharing and Copyright”, Innovati (...)
  • 29 See Oberholzer-Gee and Strumpf (2010), pp. 46–49.

19In the case of file sharing, for example, few studies have found significant benefits of free access. The studies have found that the impact of peer-to-peer file sharing on sales does not seem that relevant.28 Furthermore, data on the supply of new works seem to support the argument that the advent of file sharing did not discourage creators and creativity at large.29 In fact, the impact of file sharing on creators may be positive due to the increase of the demand for complements to protected works, such as concerts, special editions or merchandising.

  • 30 See Pollock (2006), pp. 11–13.

20The value of other examples of public domain models, as singled out by Pollock’s study, The Value of the Public Domain, can be more immediately appreciated.30 Open source software is a quintessential example of the value of an open approach, or functional public domain approach, as The Public Domain Manifesto puts it, to the production of information goods. The Internet and the World Wide Web are further examples of the great wealth that can be built upon public domain material. These technologies were non-proprietary and openness was the key to their revolutionary success. Again, online search engines, such as Google, produce relevant social benefit through their service and generate very large revenue by copying ”open” information on the web.

  • 31 Ibid., p. 14; Pira International, ”Commercial Exploitation of Europe’s Public Sector Information” (...)
  • 32 See Paul Uhlir, ”Measuring the Economic and Social Benefits and Costs of Public Sector Information (...)

21Finally, several studies have highlighted that a public domain approach to weather, geographical data, and public sector information (PSI) in general, may yield a substantial long-run value for Europe, running into the tens of billions or hundreds of billions of euros.31 The benefit of access to and reuse of public sector information has been widely investigated during the Communia proceedings by Paul Uhlir, member of the Communia Advisory Committee, among others.32 In particular, the fifth Communia workshop, co-organised by the Open Knowledge Foundation and the London School of Economics, focused on accessing, using and reusing public sector content and data.

  • 33 See Thomas Rogers, Andrew Szamosszegi and Peter Jaszi, ”Fair Use in the U.S. Economy: Economic Con (...)

22Additionally, the value of privileged and fair use of copyrighted material is also to be taken into account when assessing the overall value of the public domain. Privileged and fair uses of copyrighted material are an integral part of the functional public domain. As a recent study has shown, companies benefiting from fair use and copyright exceptions exceeded GDP, employment, productivity and export growth of the overall economy.33 Fair use-enhanced industries include manufactures of consumer devices allowing for individual copying of protected content, educational institutions, software developers, and internet search and web-hosting providers. The study also reveals that fair use industries have grown dramatically within the past twenty years, since the advent of the Internet and the digital information revolution. These data may help to argue that in the digital environment, open and public domain business models may spur growth at a faster pace than proprietary traditional business models. Promoting fair use and the functional public domain, thus related fair use industry, may also have a considerable added value for Europe.

  • 34 See Dellar v. Sam el Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (per c riam), which describes (...)

23When contrasted with the US case-by-case fair use model, the European list of predefined limitations and exceptions may be a vantage point for fair use industries in Europe. Fair use decisions are inherently complex and unpredictable in the US.34 As a consequence of the inherent unpredictability of fair use in the US, transaction costs will be higher and commercial endeavours will be chronically open to legal challenge. Europe should maximise the advantages that our legal framework offer to industries based on fair use. The enhanced legal certainty and lower transaction costs of the European legal framework will make that sector flourish in Europe and will boost the international investments. However, to that end, Europe needs to advance harmonisation of exceptions and limitations across national jurisdictions, and introduce an open fair dealing provision to close any loopholes that predefined exceptions and limitations may have, as sought by the Communia policy recommendation #3.

24Further, the public domain plays a relevant role in terms of market efficiency. From an economic standpoint, a market with a shrinking public domain would be especially inefficient. Nobel laureate Joseph Stiglitz stressed this point by noting that:

  • 35 Joseph E. Stiglitz, ”Public Policy for a Knowledge Economy”, address to the Department

[i]t is imperative to understand the ways in which the production and distribution of knowledge differs from that of goods like steel and cars. […] The fact that knowledge is, in central ways, a public good and that there are important externalities means that exclusive or excessive reliance on the market may not result in economic efficiency.35

  • 36 See Sanford J. Grossman and Joseph E. Stiglitz, ”On the Impossibility of Informationally Efficient (...)
  • 37 Boyle (2008), pp. 39–41.

25Restricting access to information wo ld increase the inefficiency of the market beca se perfect information makes the perfect market.36 A market that commodifies information excessively will be less efficient in allocating reso rces in o r society since key information to facilitate that allocation will be more diffic lt to find. In addition, by raising the costs of information, we will ndermine creativity since the b ilding blocks of f t re creations will be inaccessible to a portion of our society.37

26Finally, as we will better detail later, the public domain is an engine of democratisation because it ensures proper access to information for EU citizens regardless of the market power of the players. The value of the public domain as a building block of our capacity for free expression has been immensely enhanced by the ubiquity of the interconnected society and the power of propagation of digitization. Technological advancement makes the public domain the perfect democratic forum.

27For the purpose of the Communia project, digitization and the Internet revolution are an extraordinary opportunity to multiply the value of the public domain and exploit humanities’ riches as never before. Several authors have described the Internet revolution as a monumental shift that we are undergoing. David Bollier, speaker at the third Communia conference, notes:

  • 38 David Bollier, ”The Commons as New Sector of Value Creation: It’s Time to Recognize and Protect the (...)

I believe we are moving into a new kind of cultural if not economic reality. We are moving away from a world organized around centralized control, strict intellectual property rights and hierarchies of credentialed experts, to a radically different order. The new order is predicated upon open access, decentralized participation, and cheap and easy sharing.38

  • 39 See Benkler (2007).
  • 40 Ibid., p. 101; see also Jerome H. Reichman, ”Of Green Tulips and Legal Kudzu: Repackaging Rights i (...)
  • 41 Rishab Aiyer Ghosh, ”Technology, Law, Policy and the Public Domain”, paper delivered at the first (...)

28Digital networks fuel new forms of user-based creative sharing and collaboration. This mass collaboration may stifle social and economic enrichment to a far greater extent than in the past. Yochai Benkler described the high generative capacity of online commons as the ”wealth of networks”.39 The wealth of networks lies for Trade and Industry and Center for Economic Policy Research (1999), p. 25, available at http://akgul.bilkent.edu.tr/​BT-BE/​knowledge-economy.pdf. in social and networked peer production that is highly generative, because it is modular, granular and inexpensive to integrate the results.40 At the first Communia workshop, Rishab Aiyer Ghosh explored the need to protect and foster open standard in the research community worldwide, to best embrace the collaborative networked projects. Ghosh noted that ”our technology future will be based on collaborative, open projects of such large scale that global policies and regulations will become more flexible to meet the needs of every stakeholder involved”.41

  • 42 See Jerome H. Reichman, ”Formalizing the Informal Microbial Commons: Using Liability Rules to Prom (...)
  • 43 See Paul F. Uhlir, ”Revolution and Evolution in Scientific Communication: Moving from Restricted D (...)

29A great deal of attention has been paid by Communia to sharing and networked peer collaboration in education and research, especially at the second and eighth Communia conferences. In particular, at the second Communia conference, Jerome H. Reichman, a member of the Communia Advisory Committee, discussed the introduction of a contractually reconstructed commons via the ex ante acceptance of liability rules to promote the exchange of materials in a globally distributed and digitally integrated research commons.42 At the same conference, Uhlir proposed a model of open knowledge environments (OKEs) for digitally networked scientific communication. OKEs would ”bring the scholarly communication function back into the universities” through ”the development of interactive portals focused on knowledge production and on collaborative research and educational opportunities in specific thematic areas”.43

  • 44 See Diaspora: https://joindiaspora.com.
  • 45 See Kickstarter, ”Decentralize the Web with Diaspora”, available at http://www. kickstarter.com/pr (...)

30However, the revolution is far more massive and distributed than collaboration in education and research. Technological change has brought about cultural change, because the audience has become an active participant in its own culture. Open networks and networked peer collaboration have transformed markets by enabling amateurs to innovate. Individual experimentation, sub-cultures, and a community of social trust have created Linux, Wikipedia, Facebook, YouTube, and major political websites. Flexibility, decentralisation, cooperative creation, and customisation out-performed corporate bureaucracies unwilling to experiment because it was thought to be too risky and costly. Moreover, new models of decentralised and cooperative creation out-perform themselves, as it is the case for open alternatives to Facebook like the Diaspora project.44 Faced with Facebook’s centralised nature and desire to control online identities by trampling on privacy norms, the online community has been responding with the emergence of projects and experiments to redress the deficiencies of the Facebook model. The specificity of the Diaspora project resides also in crowd-sourced funding that was largely raised out of the dissatisfaction for the centralised social networking models.45

31The Musopen project provides an additional example of the potential of

32public domain works when exploited within an open and peer-based project. Musopen is a charity that aims to produce and distribute recordings and sheet music of public domain music. The project allows users to suggest pieces that they would like to have recorded and to pledge funds to pay for the recording. Recently, the project crowd-funded US$70,000 through a KickStarter campaign.

  • 46 See Lawrence Lessig, Free Culture: The Nature and Future of Creativity (London: Penguin, 2005).
  • 47 See Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Pengui (...)
  • 48 Samuelson (2003), p. 147.
  • 49 Bollier (2008).

33The interactive nature of the Web 2.0 has propelled user-generated creativity and defined a peculiar form of digital culture that has been termed as ”free culture”.46 ”Remix” and ”mash up” are now keywords of the cultural process taking place in the digital environment.47 Remix culture has emphasised the potential for reuse of public domain material. Open networks, user-generated creativity, and remix culture have made the public domain highly generative. The public domain, once regarded as a ”virtual wasteland of undeserving detritus,”48 has become ”a fertile paradise… a commons”.49

34The revolution brought by the Web 2.0 has called for a Copyright 2.0. This call is urged, as Marco Ricolfi put it at the first Communia conference, by the fact that:

  • 50 Marco Ricolfi, ”Copyright Policies for Digital Libraries in the Context of the i2010 Strategy”, pa (...)

…the social and technological basis of creation has been radically transformed. The time has come for us to finally become aware that, in our post-post-industrial age, the long route which used to lead the work from its creator to the public by passing through different categories of businesses is gradually being replaced by a short route, which puts in direct contact creators and the public.50

35Copyright 2.0 stands for a relaxed and more flexible set of rules that may adapt to the new mechanics of creative production in the digital age. In particular, Copyright 2.0 should serve and pave the way for the ”short route” that enhances an unrestrained discourse between authors and the public.

36Together with the cultural revolution of networked peer production, the nature of digital information and digitization may also greatly enrich the public domain. Digital information is inexpensive and easy to collect, store, and make available via digital networks. The nature of digital information has propelled the creation of databases of legislative, jurisprudential and governmentally produced material; digital libraries, such as Europeana,51 Project Gutenberg, Google Books, the Online Books Page,52 the Hathi Trust Digital Library;53 digital repositories; scientific libraries of reusable code; databases of scientific and technical information; vast non-profit digital archives, such as the Internet Archive; electronic journals; and MP3 files of music posted by bands wanting to attract a new audience.

  • 54 See Patricia Cohen, ”Digital Keys for Unlocking the Humanities’ Riches”, The New York Times, 16 No (...)
  • 55 See Google Books’ Ngram Viewer, http://books.google.com/ngrams/ (discussing the gigantic database (...)

37Again, digital tools such as high-performance computers and digitized archives are transforming research in science and scholarship in history, literature and the arts.54 The human genome project is an example of how computational analysis of digitized data has changed scientific research. The emerging field of digital humanities encompasses a wide range of activities, including online preservation, digital mapping, data mining and the use of geographic information systems. Digital humanities can reveal unexplored patterns and trends by analysing unprecedented amounts of data.55

  • 56 Charles Nesson with Juan Carlos De Martin, ”Communia and Universities”, welcome address at the thi (...)

38The digital environment has the potential to make knowledge a truly global public good. As Charles Nesson reminded us at the third Communia conference, the ”challenge is how to use this environment to create knowledge”.56 Human inventiveness has provided us with a ground-breaking solution to underdevelopment, isolation, and cultural and social divide. The open question is whether we, as a society, are up to the task of re-inventing, and challenging our notions of democracy, education, economy and social interaction.

  • 57 Ricolfi (2008), p. 15.

39Communia maintains that Europe should not be afraid of changing and flourishing. It believes that policy strategies implementing openness in information management are the key to any change that may fully exploit technological advancement. Any actions towards the enclosure of the public domain should be reversed. Outmoded intellectual property models should be re-invented. Again, Ricolfi, reminds us that the time to take up this challenge has come, regardless of how daunting the task may be.57 This solicited change is sought to address the many challenges and tensions that the present intellectual property system is presenting to the public domain. The discussion of the most relevant of those challenges and tensions will be the focus of the next portion of this essay.

3. Public domain challenges and bottlenecks

  • 58 See Jerome H. Reichman and Jonathan A. Franklin, ”Privately Legislated Intellectual Property Right (...)
  • 59 See P. Bernt Hugenholtz, ”Owning Science: Intellectual Property Rights as Impediments to Knowledge (...)

40There is an undeniable tension between the public domain and the copyright system. This tension is represented by an equation where the enclosure of the public domain is proportional to the expansion of the copyright protection.58 This tension is unavoidable and originates from the dual functionality of knowledge as a commodity and as a driving social force. At the second Communia conference, Bernt Hugenholz referred to this tension as the ”paradox of intellectual property”, because intellectual property is a ”system that promotes, or at least, aspires to promote knowledge, dissemination, cultural dissemination by restricting it”, by creating temporary monopolies in expressed ideas or in applied invention.59

41In Europe, the paradox is heightened by the intensity of moral rights. The strength of moral rights, especially the moral right of integrity, conversely weakens the public domain. In Europe, moral rights are inalienable and potentially perpetual. Any copyright expirations, public domain dedications or the licensing of a creative work under open access and reuse models will only enrich the structural and functional public domain under the assumption and to the extent that moral rights are not infringed. The capacity of the heirs and descendants of an author to claim infringement in perpetuity threatens the public domain with legal uncertainty. Adaptations and re-interpretations of works, abridged versions of works, colourisations of movies, or the application of other future unforeseeable technological tools, which may somehow temper with or modify the perception of the original work, may all trigger the reaction of the author’s estate in perpetuity.

  • 60 Boyle (2008), pp. 54–82.

42However, digitization and internet distribution have exacerbated these traditional tensions between copyright protection and the public domain. The misperception of the ”Internet threat” has led to a reaction that endangers the public domain.60 Concurrently, the opportunities that digitization and Internet distribution offer to our society make enclosure and commodification of our information environment even more troublesome. As Paul A. David, keynote speaker at the first Communia conference, noted:

  • 61 Paul A. David and Jared Rubin, ”Restricting Access to Books on the Internet: Some Unanticipated Ef (...)

[t]oday, the greater capacity for the dissemination of knowledge, for cultural creativity and for scientific research carried out by means of the enhanced facilities of computer-mediated telecommunication networks, has greatly raised the marginal social losses that are attributable to the restrictions that those adjustments in the copyright law have placed upon the domain of information search and exploitation.61

  • 62 Yochai Benkler, ”Free as the Air to Common Use: First Amendment Constraints on the Enclosure of th (...)
  • 63 See Boyle (2003 and 2008); see also Keith Maskus and Jerome H. Reichman, ”The Globalization of Pri (...)
  • 64 See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Lo (...)

43With large agreement, scholars and the civil society have warned that ”we are in the midst of an enclosure movement in our information environment”.62 Boyle has talked about a second enclosure movement that it is now enclosing the ”commons of the mind”.63 As for the natural commons, fields, grazing lands, forests, and streams that were enclosed in the sixteenth century in Europe by landowners and the state, relentlessly expanding intellectual property rights are enclosing the intellectual commons and the public domain. In a very similar fashion, Peter Drahos and John Braithwaite have spoken of an ”information feudalism”.64 Enclosure is promoted by a mix of technology and legislation. According to Hugenholtz and Lucie Guibault, the public domain is under pressure from the ”commodification of information”.

  • 65 P. Bernt Hugenholtz and Lucie Guibault, ”The Future of the Public Domain: An Introduction”, in The (...)

[T]he public domain is under pressure as a result of the ongoing march towards an information economy. Items of information, which in the ”old” economy had little or no economic value, such as factual data, personal data, genetic information and pure ideas, have acquired independent economic value in the current information age, and consequently become the object of property rights making the information a tradable commodity. This so-called ”commodification of information”, although usually discussed in the context of intellectual property law, is occurring in a wide range of legal domains, including the law of contract, privacy law, broadcasting and telecommunications law.65

  • 66 See Hess and Ostrom (2007), p. 12.

44Commodification of information is propelled by the ability of new technologies to capture resources previously unowned and unprotected, as in a new digital land grab.66

  • 67 See H. Scott Gordon, ”The Economic Theory of a Common-Property Resource: The Fishery”, Journal of (...)
  • 68 See generally Lee A. Fennell, ”Commons, Anticommons, Semicommons”, in Research Handbook on the Eco (...)
  • 69 See Garrett Hardin, ”The Tragedy of the Commons”, Science, 162 (1968), 1243-48.
  • 70 Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford U (...)
  • 71 See William Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cam (...)

45However, this digital land grab is the continuation of a well-settled analogue trend whose limits and fallacies have already been shown and rebutted. In the past, law and economics scholars have launched a crusade to expose the evil of the commons,67 the evil of not propertising.68 A much-quoted article written by Garret Hardin in 1968 termed the evil of not propertizing as the tragedy of the commons.69 Hardin identified the tragedy of the commons in the environmental dysfunctions of overuse and underinvestment found in the absence of a private property regime. He made it clear that any commons open to all, ungoverned by custom or law, will eventually collapse. The fear of the tragedy of the commons propelled the idea that more property rights will necessarily lead to the production of more information together with the enhancement of its diversity.70 In this perspective, the prevailing assumption is that anything of value within the public domain should be commodified.71 The recent tremendous expansion of intellectual property rights has been justified by this and similar statements.

  • 72 See Yochai Benkler, ”A Political Economy of the Public Domain: Markets in Information Goods Versus (...)
  • 73 See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective A (...)
  • 74 See Hess and Ostrom, p. 11; Rights to Nature: Ecological, Economic, Cultural, and Political Princi (...)
  • 75 See Carol M. Rose, ”The Comedy of the Commons: Custom, Commerce, and Inherently Public Property”, (...)

46To put it bluntly, this statement and the like are wrong. No economic theory of intellectual property and commons management supports the prediction stated.72 Ostrom powerfully advocated the cause of the commons against the mantra of propertisation. Her work showed the inaccuracies of Hardin’s ideas and brought attention to the limitations of the tragedy of the commons.73 Empirical studies by Ostrom and others have shown that common resources can be effectively managed by groups of people under suitable conditions, such as appropriate rules, good conflict-resolution mechanisms, and well-defined group boundaries.74 Under suitable conditions and proper governance, the tragedy of the commons becomes ”the comedy of the commons”.75

  • 76 Lawrence Lessig, ”Re-crafting a Public Domain”, Yale Journal of Law and the Humanities, 18 (2006), (...)

47Culture is quintessential comedic commons, because it is enriched through reference as more people consume it.76 The carrying capacity of cultural commons is endless. Cultural commons are non-rivalrous. One person’s use does not interfere with another’s. Unlike eating an apple, my listening of a song does not subtract from another’s use of it. Therefore, cultural commons unveil the inaccuracy of the tragedy of the commons more than any other commons. Propertisation and enclosure in the cultural domain may be a wasteful option by cutting down social and economic positive externalities, particularly in peer-based production environments.

  • 77 Michael A. Heller, ”The Tragedy of the Anticommons: Property in the Transition from Marx to Market (...)
  • 78 See Paul A. David, ”New Moves in ‘Legal Jujitsu’ to Combat the Anti-commons: Mitigating IPR Constr (...)

48Reviewing the peculiar nature of cultural commons, the academic literature has turned upside down the paradigm of underuse of common resources by developing the idea of the ”tragedy of the anti-commons”.77 The tragedy of the anti-commons lies in the underuse of scarce scientific resources because of excessive intellectual property rights and all of the transaction costs accompanying those rights. David exposed the perverse resource allocation in an anti-commons scenario at the first Communia conference.78

49By increasing the asset value of copyright interests, copyright term extension is one basic tool of commodification of information and creativity. Copyright term extension may be singled out as the clearest evidence of the progressive expansion of property rights against the public domain. Any temporal extension of copyright deprives and impoverishes the structural public domain. The policy choice has so far privileged private interest over public, and copyright protection over the public domain.

  • 79 See Anna Vuopala, ”Assessment of the Orphan Works Issue and Cost for Rights Clearance” (May 2010), (...)
  • 80 See Statute of Anne, 1709, 8 Ann., c. 19 (Eng.)
  • 81 Hinton v. Donaldson, Mor 8307 (1773) (Lord Kames).

50The timeline of temporal extension of copyright protection shows a steady elongation in all international jurisdictions. From the original protection encompassing a couple of decades, copyright protection has expanded to last for over a century and a half. As an example, today the oldest work still in copyright in the United Kingdom dates back to 1859.79 The Statute of Anne, the first copyright law enacted in England in 1709, provided only for 14 years of protection, which was renewable for a term of an additional 14 years if the author was still alive at the expiration of the first term.80 This expansionistic course does not appear to be interrupted or reversed and the line between temporary and perpetual protection is blurred. The words of Lord Kames, discussing the booksellers’ request for a perpetual common law right on the printing of books a couple of centuries ago, act as a powerful warning from the past: ” [i]n a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals”.81

  • 82 See European Parliament and Council Directive 2011/77/EU Amending Directive 2006/116/EC on the Ter (...)
  • 83 Stef van Gompel, ”Extending the Terms of Protection for Related Rights Endangers a Valuable Public (...)

51Recently, an extension of the term of protection for performers and sound recordings has been adopted by the European Parliament.82 Communia is opposing any such re-adoption and asking the Member States not to implement the directive. Extending the terms of protection for related rights endangers a valuable public domain, as argued by Stef van Gompel at the second Communia workshop.83 Communia Policy Recommendation #2 asked for the withdrawal of the proposal of the directive later adopted. In particular, Communia is challenging the appropriateness of any retroactive extension of the copyright term. It opposes any blanket extension of copyright and neighbouring rights, as detailed in Communia Policy Recommendation #1 and #2. Once the incentive to create is assured, any extension of the property right beyond that point should at least require affirmative proof that the market is incapable of responding efficiently to consumer demand.

52The most palpable example of the destructive effect of copyright extension on our cultural environment is the case of orphan works. Orphan works are those whose rights-holders cannot be identified or located and, thus, whose rights cannot be cleared. Publishers, film-makers, museums, libraries, universities and private citizens worldwide face daily insurmountable hurdles in managing risk and liability when a copyright owner cannot be identified or located. Too often, the sole option left is a silent unconditional surrender to the intricacies of copyright law. Many historically significant and sensitive records will never reach the public. Society at large is being precluded from fostering enhanced understanding.

  • 84 See P. Bernt Hugenholtz et al., ”The Recasting of Copyright & Related Rights for the Knowledge Eco (...)

53The cultural outrage over orphan works is a by-product of copyright expansion, the retroactive effect of some copyright legislation, and the intricacies of copyright law. A study from the Institute for Information Law at Amsterdam University (IViR) attributed the increased interest in the issue of orphan works to the following factors: (1) the expansion of the traditional domain of copyright and related rights; (2) the challenge of clearing the rights of all the works included in derivative works; (3) the transferability of copyright and related rights; and (4) the territorial nature of copyright and related rights.84 In Europe the problem is further complicated by the difficulty of determining whether the duration of protection has expired. As mentioned earlier, the complexities related to copyright term extensions, such as war extensions, blur the contours of the public domain, thereby making more uncertain and costly any attempt to clear copyrights.

  • 85 Commission Communication on Copyright In The Knowledge Economy, COM (2009) 532 final (19 October 2 (...)

54The clearing process can take from several months to several years. In many instances, the cost of clearing rights may amount to several times the digitization costs. The unfulfilled potentials of digitization projects worsen the cultural outrage over orphan works in terms of loss of opportunities and value that may be extracted from the public domain. The challenges of digitizing works today were widely investigated at the sixth Communia workshop in Barcelona. The European institutions are also aware of the potential loss of social and economic value if the orphan works problem remains unsolved. As the European Commission noted, ”there is a risk that a significant portion of orphan works cannot be incorporated into mass-scale digitization and heritage preservation efforts such as Europeana or similar projects”.85 Communia Policy Recommendation #9 urges a solution to the orphan works problem.

  • 86 Mark Davison, ”Database Protection: The Commodification of Information”, in The Future of the Publ (...)

55As additional tools of commodification, term extension of copyright has been aided by copyright subject matter expansion, multiplication of strong commercial rights, and erosion of fair dealing prerogatives, exceptions and limitations. Firstly, the expansion of copyright has caused the contraction of the structural public domain. The protected subject matter has been systematically expanded from books to maps and photographs, to sound recordings and movies, to software and databases. In some instances, new quasi-copyrights have been created, as in the case of the introduction of sui generis database rights in the EU, a quintessential example of the process of commodification of information.86 Additionally, subject-matter expansion has been coupled with the attribution of strong commercial distribution rights, especially the right to control imports and rental rights, and the strengthening of the right to make derivative works.

56Together with the contraction of the structural public domain, the functional public domain has been similarly eroded by the narrowing of the scope of fair dealing or fair use, exceptions and limitations to copyright, and public interest rights. The erosion of public interest rights reached its peak in recent times as a side effect of the transposition of the authorship rights from the analogue to the digital medium. In particular, the enactment of anti-circumvention provisions as a response to the ”Internet threat” played a decisive role in the process of contraction of fair dealing rights.

  • 87 See Berne Convention for the Protection of Literary and Artistic Works, Art. 5(2), 9 September 188 (...)
  • 88 See also Stef van Gompel, ”Formalities in the Digital Era: An Obstacle or Opportunity?”, in Global (...)

57There is, finally, an additional dimension of the process of copyright expansion. Traditionally, the public domain was the default rule of our system of creativity, and copyright was the exception. The abolition of formalities changed it all. As a consequence of the international abolition of formalities enclosed in Article 5(2) of the Berne Convention, copyright was declared the default, and public domain was the exception.87 By default, intellectual works are created under copyright protection, and public domain dedication must be properly spelled out. Communia opposes any such overreaching expansion of copyright protection and strongly upholds the view embodied in the first general principle of The Public Domain Manifesto that ”[t]he Public Domain is the rule, copyright protection is the exception.” Communia upholds the position that the abolition of formalities no longer serves the purpose that it was served in the analogue world.88 In the field of international law, the mandatory adoption of a ”no formalities” approach had a precise target: it was an anti-discrimination norm, introduced to avoid any kind of hidden disadvantages for foreign authors. The digitized and interconnected world allows for instantaneous sharing of information and minimises the space and time hurdles that persuaded the international community to abolish formalities. Today, the non-discriminatory goal of Article 5(2) of the Berne Convention may be reached using alternative tools: for instance, a simple and free online copyright register could be easily implemented and made accessible from every country in the world. A carefully crafted registration system may enhance access and the reuse of creative works by attenuating some of the structural tensions between access and property rights encapsulated in our copyright system. Communia has embodied this position in Recommendation #8.

58The crucial driver of the modern drift toward commodification of the public domain is a mix of technology and legislation. Technology was able to appropriate and fence informational value that was previously unowned and unprotected. That value was appropriated by means of the adoption of technological protection measures (TPMs) to control the access and use of creative works in the digital environment, including uses that previously could not be restrained. The seal on a policy of control was set by the introduction of the so-called ”anti-circumvention provisions” aimed to forbid the circumvention of copyright protection systems. In addition, the law banned any technology potentially designed to circumvent technological anti-copy protection measures.

  • 89 See ”Opinion of European Academics on Anti-Counterfeiting Trade Agreement”, p. 6, available at htt (...)
  • 90 See Boyle (2008), p. 104; Samuelson (2003), p. 161.
  • 91 See Lucie Guibault et al., ”Study on the Implementation and Effect in Member States’ Laws of Direc (...)
  • 92 See Common Position No. 48/2000 of 28 September 2000 adopted by the Council, with a view to adopti (...)
  • 93 Guibault et al., Study on Directive 2001/29/EC, p. 106; see also Nora Braun, ”The Interface Betwee (...)

59Anti-circumvention provisions have negative effects both on the structural and the functional public domain. Communia Policy Recommendation #7 pleads for an immediate intervention to protect the public domain against the adverse effect of TPMs. Additionally, Communia would like European institutions to carefully reconsider the adoption of any stronger protection of TPMs included in the last proposed text of the Anti-Counterfeiting Trade Agreement (ACTA), as also recently requested by several European academics.89 The foremost concern with this legal and technological bundle is that TPMs and anti-circumvention provisions can make copyright perpetual.90 The legally protected encryption, in fact, would continue after the expiration of the copyright term. Because circumventing tools are illegal, users will be incapable of accessing public domain material fenced behind TPMs. In addition, TPMs will affect the public domain by restricting or completely preventing fair dealings, privileged and fair uses.91 TPMs cannot make any determination of purpose that is necessary to assess whether a use is privileged or not. In the absence of that determination, copyright will be technologically enforced regardless of the fairness of the use, the operation of a copyright exception or limitation, or a private use. As per Directive 2001/29/EC, as with many other pieces of international legislation, circumventing a digital right management technology that restricts acts permitted by the law is a civil wrong, and perhaps a crime.92 Exceptions and limitations, and in particular the limitations included in Article 6(4) of the Directive 2001/29/EC, will be of no avail to exclude infringement of the anti-circumvention provisions.93

  • 94 See Lucie Guibault, ”Wrapping Information in Contract: How Does it Affect the Public Domain?”, in (...)

60In recent years, contract law has also been deployed to commodify and appropriate information supposedly in the public domain.94 Contracts may be employed to restrict or prohibit uses of works that would otherwise be permitted under copyright law. The digital information marketplace has seen the emergence of standard form contracts restricting the capacity to use information not or no longer qualifying for intellectual property protection or whose use is privileged. The most powerful example is that of click-wrap agreements stating that some uses of scanned public domain material are restricted or prohibited. A glimpse of such a practice has been implemented by Google as part of its project to partner with international libraries to digitize public domain materials. If you download any public domain books from the Google Books website, quite awkwardly the Usage Guidelines included at the front of each scan read as follows: ”We also ask that you: + Make non-commercial use of the files. We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes”. In the preamble to the Usage Guidelines, Google justifies these restrictions by stating that the digitization work carried out by Google ”is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties”. Communia Policy Recommendations #5 and #6 set up principles to protect affirmatively the public domain against the misappropriation of public domain works with special emphasis on their digital reproduction.

61However, the synergy between mass-market licenses and technological protection measures poses the major threat to the availability of digital information in the public domain. As Guibault has noted at the first Communia conference:

  • 95 Lucie Guibault, ”Evaluating Directive 2001/29/EC in the Light of the Digital Public Domain”, paper (...)

The digital network’s interactive nature has created the perfect preconditions for the development of a contractual culture. Through the application of technical access and copy control mechanisms, rights owners are capable of effectively subjecting the use of any work made available in the digital environment to a set of particular conditions of use.95

62This was never the case in the analogue environment. The purchase of a book, the enjoyment of a painting or a musical piece never entailed the obligation of entering into a contract in the past. Hence, the emergence of this contractual culture, coupled with strict technological enforcement, has been endangering the public domain with a new set of threats.

  • 96 Ibid.

63Technological protection measures empower the application and enforcement of mass-market licenses on the Internet that may restrict the lawful use of unprotected information by the users. Technological protection measures act as a substitute for the traditional exceptions and limitations provided by copyright law. Therefore, Guibault concluded that ”the widespread use of technological protection measures in conjunction with contractual restrictions on the exercise of the privileges recognised by copyright law does affect the free flow of information”.96 The control over the dissemination of ideas and facts or other unprotected and non-protectable information will unduly hinder democratic discourse and freedom of expression by restricting productive uses of unprotected information.

  • 97 Benkler, ”Free as the Air to Common Use” (1999), p. 393; see also Christopher S. Yoo, ”Copyright a (...)
  • 98 The European Task Force on Culture and Development, ”In From the Margins: A Contribution to the De (...)

64Any encroachment upon the public domain is an encroachment upon our capacity for free and diverse expression. Freedom of expression and the public domain are overlapping concepts that share the same goal. Public domain and free speech both have a democratic function in that they propel personal and political discourse. The public domain is pivotal to our ability to express ourselves freely regardless of the market power of the speakers. Any decrease in the public domain will produce the most relevant repercussions on people with less ability to finance creation and dissemination of their speech.97 Thus, any contraction of the public domain will push Europe away from the goal of bringing ”the millions of dispossessed and disadvantaged Europeans in from the margins of society and cultural policy in from the margins of governance”, to quote a European report drafted as a specific complement to the World Commission on Culture and Development’s 1996 report on global cultural policy.98

  • 99 Neelie Kroes, ”A Digital World of Opportunities”, speech delivered at the Forum d’Avignon: Les Ren (...)
  • 100 Germann Avocats et al, ”Implementing the UNESCO Convention of 2005 in the European Union” (May 201 (...)
  • 101 See Fiona Macmillan, ”Public Interest and The Public Domain in an Era Of Corporate Dominance”, in (...)
  • 102 See Guy Pessach, ”Copyright Law as a Silencing Restriction on Noninfringing Materials: Unveiling t (...)
  • 103 Fiona Macmillan, ”The Dysfunctional Relationship Between Copyright and Cultural Diversity”, Quader (...)

65As an interrelated issue, copyright expansion and public domain enclosure affect our freedom of expression by impinging on cultural diversity. Historically, cultural diversity has been a fundamental value in the EU. Very recently, in looking at the implementation of a digital agenda for Europe, the European Commissioner, Nellie Kroes, powerfully reclaimed the value of cultural diversity by saying that ”we want ‘une Europe des cultures’”.99 In addition, since ratification in 2007, all of the relevant European policy decisions should be compelled to conform to the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions’ obligations. In this regard, a recent study on the state of the implementation of the Convention in Europe noted that, while some copyright is necessary, too much copyright is detrimental to diversity of cultural expression. Diversity of cultural expression is particularly threatened by intellectual property rights ”in markets that are dominated by big corporations exercising collective power as oligopolies”.100 Cultural conglomerates deepen their market dominance through horizontal and vertical integration.101 The high degree of control over the entire distribution process in a number of different areas of cultural output makes it possible to run any alternative, non-infringing creative material out of the market.102 As a consequence, global media and entertainment oligopolies will impose an homogenising effect on local culture. Fiona Macmillan argues that cultural filtering, homogenisation and the loss of the public domain have exacerbated the ”dysfunctional relationship between copyright and cultural diversity”.103

66In particular, public domain enclosure and copyright expansion are very pernicious for the diversity and decentralisation of modern forms of peer information production:

  • 104 Benkler (1999), p. 410.

In a digital environment where distribution costs are very small, the primary costs of engaging in amateur production are opportunity costs of time not spent on a profitable project and information input costs. Increased property rights create entry barriers, in the form of information input costs, that replicate for amateur producers the high costs of distribution in the print and paper environment. Enclosure therefore has the effect of silencing non-professional information producers.104

  • 105 See Benkler (2001), pp. 272–85 (reviewing in detail the effects of intellectual property approache (...)
  • 106 Benkler (1999), p. 410.

67Amateur production has been the driving force of the Internet informational revolution. Blogs, listservs, forums, and user-based communities re-calibrated the meaning of diversity and freedom of expression toward a higher standard. Non-professional information production empowered the civic society with the ability to produce truly independent and diverse speech. Any policy intervention should not underestimate the decreased production by organisations using strategies that do not benefit from copyright expansion.105 Increased copyright protection and public domain enclosure, in fact, may ”lead, over time, to concentration of a greater portion of the information production function in society in the hands of large commercial organizations that vertically integrate new production with owned-information inventory management”.106

68Ironically, copyright law may end up serving the old enemy against which it was originally unleashed. Widely recognised as a tool to counter censorship so common in the old patronage system, copyright law may turn out to restrict free and diverse speech by its steady expansion and converse public domain enclosure and commodification. Moreover, and more regretfully, an unwise expansionistic copyright policy may empower again that old enemy of any democratic society at the very moment when technological progress may lead us close to its very annihilation.

  • 107 See Federico Morando and Prodromos Tsiavos, Cultural Heritage Rights in the Age of Digital Copyrig (...)

69It is worth mentioning that Communia has also been investigating the problem of the tension between cultural heritage protection laws (CHPLs) and the public domain. In some EU Member States, cultural heritage legislation may impose an additional layer of restrictions over works that are otherwise copyright free. In particular, in some instances, CHPLs may set up a permission system to reproduce cultural resources and monuments. The Communia Working Group 3 gathered in Istanbul in December 2010 to explore the issue and produce a set of recommendations. The policy options discussed by the group ranged from the abolition of CHPLs, the harmonisation of CHPLs across the EU, and the gradual transition towards less and more rational restrictions. In particular, the most important conclusion of the meeting was that CHPLs could be used in order to mark and protect the public domain, if the permission system possibly in place is accompanied by an obligation to mark the work as a public domain work.107 Together with the more substantial and specific factors troubling the public domain so far described, there are other more generic aspects of the legislative process that should be redressed to better protect and promote the European public domain. Lack of representation of the interest of users and the public, lack of transparency of the legislative process, obscurity of copyright legal provisions, and lack of legal harmonisation are all factors that aggravate the tension between public domain and copyright protection.

  • 108 For an account of copyright industry political influence in the US and worldwide, see Jessica Litm (...)
  • 109 See Mançur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge (...)

70Enclosure and commodification of the public domain are also the result of an unbalanced legislative process. Lobbying from cultural conglomerates played an important role in amplifying the process of copyright expansion beyond strict public interest.108 The public at large has always had very limited access to the bargaining table when copyright policies had to be enacted. This is due to the dominant mechanics of lobbying that largely excluded the users from any decision on the future of creativity management. In accordance with Mançur Olson’s work, copyright policy is driven by a small group of concentrated players to the detriment of the more dispersed interest of smaller players and the public at large.109 The final outcome has been the implementation of a copyright system that is strongly protectionist and pro-distributors with an overbroad expansion of private property rights followed by a correspondent restriction of public prerogatives and enclosure of the public domain.

  • 110 European Commission, A Digital Agenda for Europe, Communication from the Commission to the Europea (...)

71Legal uncertainty is an additional hurdle to the public enjoyment of a healthy and rich public domain. By blurring the contours of the structural and functional public domain, legal uncertainty will augment the unpredictability of the European public domain. As a consequence, users’ prerogatives will be variable and ambiguous, transaction costs will rise, and the efficiency of the European Internal Market will be lowered, therefore undermining A Digital Agenda for Europe’s goal of a ”vibrant digital single market”.110 The fundamental drivers of legal uncertainty are obscure laws and a lack of harmonisation.

  • 111 See Litman (2001) and Jessica Litman, ”Real Copyright Reform”, Iowa Law Review, 96 (2010), 1-55.

72Authors including Jessica Litman have argued that copyright laws are too obscure and complex for the users.111 Copyright law is drafted for the market players, and its obscurity causes a high level of uncertainty among users regarding what they can or cannot do with creative content. Because of the complexity of copyright provisions, users are discouraged from enforcing privileged or fair uses of copyrighted content in court. The obscurity of copyright law has perpetuated and propelled its misuse and abuse by copyright conglomerates. The problem is exacerbated by the fact that users are involved far more than before in the creative process. Digitization, the Internet and user-generated culture have made everybody a potential author as well as a potential infringer.

  • 112 See Hugenholtz, et al. (2006), pp. 31–41.

73The public domain suffers also from legal uncertainty that is the effect of lack of harmonisation among European national jurisdictions. Firstly, Europe’s diverse legal frameworks heighten the indeterminacy of that portion of the European structural public domain that may be termed the ontological public domain. The ontological public domain is defined by the application of the idea-expression dichotomy, the subject matters protected, the criteria for protection, either the requirement of originality or substantial investment, and the exhaustion doctrine. In Europe, subject matters of protection have been harmonised only with respect to new or controversial subject matters, such as software, databases and photographs.112 The concept of originality is still largely unharmonised throughout Europe and fundamental differences between continental and common law systems still remain.

  • 113 See Guibault (2008), pp. 5–7.
  • 114 See Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related (...)

74The diversity of the European legal framework also adds peculiar complexity to the issue of copyright duration. Despite the fact that efforts have been made toward harmonisation, the intricacies of length of protection and copyright extension (such as war extensions) in national jurisdictions aggravate the tension between copyright protection and the public domain. Communia Policy Recommendation #4 calls for further harmonisation of rules of copyright duration. Further, lack of harmonisation of exceptions and limitations in Europe plays a nefarious role for the public domain, as spelled out by Guibault at the first Communia conference.113 Notwithstanding the Information Society Directive aimed at harmonising exceptions and limitations, legal uncertainty still persists. All but one of the limitations in the regime set up by the Information Society Directive was optional, and the regime provides the Member States with ample discretion to decide if and how they implement the limitations.114

75This variety of different rules applicable to a single situation across the European Community has an adverse effect on the functional public domain thus undermining the users’ prerogatives. Communia Policy Recommendation #3 asks for further harmonisation and revision of exceptions and limitations across Europe, together with the introduction of an open fair dealing exception to close any loopholes that predefined exceptions and limitations may have. Europe has the opportunity to acquire a leading international role in the fair use industry, by taking full advantage from the European system of predefined exceptions and limitations, if contrasted with the more unpredictable United States case-by-case fair use model.

76Finally, the promotion of the public domain calls for an effort towards harmonisation of the definition of the moral right of integrity and duration of moral rights after the death of the author. Communia trusts that moral rights should not extend longer than economic rights. This arrangement would be compliant with the minimum standard set by Article 6bis (2) of the Berne Convention, which states that the moral rights of the author ”shall, after his death, be maintained, at least until the expiry of the economic rights”.

4. The public domain and the European Commission strategy

77So far much of the value residing in the public domain has been left unattended. Much of the emphasis has been placed on private commodification of information rather than exploitation of the public domain for the public good. Unfortunately, no international player has yet focused upon the value of openness and public domain business models by reversing the present trend of extreme propertisation. As detailed throughout the report, the emerging online culture of sharing and remixing has enhanced the value of the public domain. User-generated content, online collaborative endeavours and peer-production, such as open source software, are founded on the value of reuse and inherently diminished by increased propertisation. The same applies to blogging, tweeting and modern forms of online information that have radically changed our democratic landscape. So far, no jurisdiction has really tackled the question of creativity in the digital age by shifting the paradigm of steady commodification of information, overlooking the fact that digitization and the Internet have changed everything. In contrast, digitization and the Internet have become a misperceived justification of extreme propertisation. Europe can become an international leader in extracting value from the public domain with a few key solutions that do not substantially harm the current state copyright and do not entail overbroad efforts.

78The large benefits that Europe could reap from preserving and promoting the public domain will substantially come at no additional costs. The assets of the public domain are ready to be profitably used. The public domain is a cultural mine enriched over the centuries. Today, the riches of the public domain can be enjoyed with the click of a computer mouse. The power of propagation through the Internet and the endless productivity of digitization have made exploitation easier and the public domain exponentially more valuable.

79Additionally, mechanisms and tools to make the public domain and the value attached to it a priority for further intervention are already in place at the EU level. Since the i2010 strategy, European institutions have greatly valued digitization and preservation of the European public domain, open access to information, and the protection of users’ prerogatives in the digital environment. The same priorities have been upheld by the most recent efforts of the EU. In this regard, as one of the seven flagship initiatives of the Europe 2020 strategy, the Digital Agenda is setting up several key principles and guidelines to redress many of the tensions challenging the full exploitation of the value of the digital public domain. Many of the key actions proposed by the Digital Agenda strengthen the conclusions and the call for policy actions put forward by Communia. In particular:

  • Digitization of the European cultural heritage and digital libraries are key aspects of the recently implemented Digital Agenda of the EU. The Digital Agenda notes that fragmentation and complexity in the current licensing system also hinder the digitization of a large part of Europe’s recent cultural heritage. Therefore,
  • rights clearance must be improved;
  • Europeana—the EU public digital library—should be strengthened and increased public funding is needed to finance large-scale digitization, alongside initiatives with private partners;
  • funding to digitization projects is to be conditioned to general accessibility of Europe’s digitized common cultural heritage online;
  • The Digital Agenda calls for a simplification of copyright clearance, management and cross-licensing. In particular, the European Commission should create a legal framework to facilitate the digitization and dissemination of cultural works in Europe by proposing a directive on orphan works;
  • The review of the Directive on the Re-Use of Public Sector Information to oblige public bodies to open up data resources for cross-border application and services has been prioritised by the Digital Agenda;
  • Promoting cultural diversity and creative content in the digital environment, as an obligation under the 2005 UNESCO Convention, is an additional relevant goal of the Digital Agenda;
  • The Digital Agenda is also very much concerned with harmonisation and simplification of laws by calling for the creation of a ”vibrant single digital market” and promoting the necessity of building digital confidence as per the EU citizens’ digital rights that are scattered across various laws and are not always easy to grasp.

80The mentioned European strategies have been translated in a vast array of projects and endeavours to protect and propel the public domain in Europe and to investigate its capacity to produce value for society at large. Communia is one of the outcomes of this strategic vision, especially conceived to investigate the challenges and the opportunities brought by digitization.

5. Communia and the European Public Domain project

  • 115 See Olson (1971).

81Communia is aggregating a strong coalition that is promoting the public domain and a sustainable cultural development in Europe. Communia has been strengthening a European network of organisations that have been developing a new perspective on the importance of the public domain for Europe and the international arena at large. Communia aims to solve the typical collective action problem raised by copyright policy by promoting the dispersed interests of smaller players and the public at large.115

82Several Communia members have embodied the Communia perspective and values in The Public Domain Manifesto. Conscious of the challenges and opportunities for the public domain in the technological environment of the networked society, The Public Domain Manifesto endorses fundamental principles and recommendations to actively maintain the structural core of the public domain, the voluntary commons and user prerogatives. With regard to the structural public domain, the manifesto states the following principles:

1. The public domain is the rule, copyright protection is the exception. […]
2. Copyright protection should last only as long as necessary to achieve a reasonable compromise between protecting and rewarding the author for his intellectual labour and safeguarding the public interest in the dissemination of culture and knowledge . […] 3. What is in the public domain must remain in the public domain. […] 4. The lawful user of a digital copy of a public domain work should be free to (re-)use, copy and modify such work. […] 5. Contracts or technical protection measures that restrict access to and re-use of public domain works must not be enforced. […]

83Together with the structural core of the public domain, The Public Domain Manifesto promotes the voluntary commons and user prerogatives by endorsing the following principles:

1. The voluntary relinquishment of copyright and sharing of protected works are legitimate exercises of copyright exclusivity. […] 2. Exceptions and limitations to copyright, fair use and fair dealing need to be actively maintained to ensure the effectiveness of the fundamental balance of copyright and the public interest.

84Further, The Public Domain Manifesto puts forward the following general recommendations to protect, nourish and promote the public domain:

1. The term of copyright protection should be reduced. […] 2. Any change to the scope of copyright protection (including any new definition of protectable subject-matter or expansion of exclusive rights) needs to take into account the effects on the public domain. […] 3. When material is deemed to fall in the structural public domain in its country of origin, the material should be recognised as part of the structural public domain in all other countries of the world. […] 4. Any false or misleading attempt to misappropriate public domain material must be legally punished. […] 5. No other intellectual property right must be used to reconstitute exclusivity over public domain material. […] 6. There must be a practical and effective path to make available ”orphan works” and published works that are no longer commercially available (such as out-of-print works) for re-use by society. […] 7. Cultural heritage institutions should take upon themselves a special role in the effective labeling and preserving of public domain works. [..] 8. There must be no legal obstacles that prevent the voluntary sharing of works or the dedication of works to the public domain. […] 9. Personal non-commercial uses of protected works must generally be made possible, for which alternative modes of remuneration for the author must be explored.

85In addition, the European-wide relevance of the public domain has been strengthened by other policy statements endorsing the same core principles of The Public Domain Manifesto. The Europeana Foundation has published the Public Domain Charter to stress the value of public domain content in the knowledge economy.116 The many relations between The Public Domain Manifesto and the Europeana Charter were discussed at the seventh Communia workshop in Luxembourg.117 The Free Culture Forum released the Charter for Innovation, Creativity and Access to Knowledge to plead for the expansion of the public domain, the accessibility of public domain works, the contraction of the copyright term, and the free availability of publicly funded research.118 Again, Open Knowledge Foundation launched the Panton Principles for Open Data in Science in February 2010, to endorse the concept that ”data related to published science should be explicitly placed in the public domain”.119

86Triggered by a forward-looking approach of the European institutions, Europe is putting together a very diversified and multi-sector network of projects for the promotion of the public domain and open access. The European public domain project is emerging in a strong multi-tiered fashion. Together with Communia, as part of the i2010 policy strategy, the EU launched the Europeana digital library network to digitize Europe’s cultural and scientific heritage.120 The LAPSI project was started to build a network covering policy discussions and strategic action on all legal issues related to access and the reuse of public sector information in the digital environment.121 Further, to assess the value and to define the scope and the nature of the public domain, the European Commission has promoted the Economic and Social Impact of the Public Domain in the Information Society project.122 The project, together with its methodology, was presented at the first Communia conference in 2008.123

  • 124 See Sophia Jones and Alek Tarkowski, ”Digital Repository Infrastructure Vision for European Resear (...)
  • 125 See DRIVER, Digital Repository Infrastructure Vision for European Research, http://www.driver-repo (...)
  • 126 See ARROW: Accessible Registries of Rights Information and Orphan Works, http://www.arrow-net.eu.
  • 127 See DARIAH: Digital Research Infrastructure for the Arts and Humanities, http://www.dariah.eu.

87Again, many other projects focus on extracting value from our scientific and cultural riches in the digital environment. The European DRIVER project, presented at the first Communia conference and the first Communia workshop,124 builds a repository infrastructure, combined with a search portal, for all of the openly available European scientific communications.125 The project ARROW (Accessible Registries of Rights Information and Orphan Works), encompassing national libraries, publishers, writers’ organisations and collective management organisations, aspires to find ways to identify rights-holders and rights, clear the status of a work, or possibly acknowledge the public domain status of a work.126 Finally, the Digital Research Infrastructure for the Arts and Humanities (DARIAH) aims to enhance and support digitally-enabled research across the humanities and the arts.127

  • 128 See Public Domain Works, http://www.publicdomainworks.net.
  • 129 See Jonathan Gray, ”Public Domain Calculators”, presentation delivered at the third Communia works (...)
  • 130 See Jonathan Gray, Rufus Pollock and Jo Walsh, ”Open Knowledge: Promises and Challenges”, paper de (...)

88With the support of the Open Knowledge Foundation, the UK government announced the launch of http://www.data.gov.uk, a collection of more than 2,500 UK government databases, which is now freely available to the public for consultation and reuse. The Open Knowledge Foundation launched the Public Domain Calculators project as part of the Public Domain Works project, an open registry of artistic works that are in the public domain.128 The Public Domain Calculators project, presented at the third Communia workshop, creates an algorithm to determine whether a certain work is in the public domain based on certain details, such as date of publication, date of death of author, etc.129 The activities and goals of the Open Knowledge Foundation, a very active Communia member, were presented at the first Communia workshop.130

89Many other civic society endeavours have been working toward the goal of promoting open access and safeguarding the public domain throughout Europe. Among them, La Quadrature du Net, an advocacy group that promotes the rights and freedoms of citizens on the Internet, is very active within and outside of the Communia network.131 The European Association for Public Domain was recently initiated as a project to promote and defend the public domain. Again, Knowledge Exchange is a co-operative effort run by European libraries and research foundations that supports the goal of making a layer of scholarly and scientific content openly available on the Internet.132 Finally, it is worth noting that commercial enterprises joined the Communia network in an attempt to investigate and promote open and public domain business models.

90This distributed European public domain project is an encouraging starting point. Nonetheless, much still must be done to promote sustainability in the development of our cultural environment. The commodification of information, the enclosure of the public domain, and the converse expansion of intellectual property rights tell a story of unsustainable imbalance in shaping the informational policy of the digital society. Communia is, therefore, calling for targeted policy actions to redress the informational policy of the digital society and to maximise the economic and social value that may be extracted from the public domain, especially from the digital public domain.

6. What can Europe do for the public domain?

91One of the main goals of the Communia Network is to provide policy recommendations to strengthen the public domain in Europe. The Communia recommendations are principally addressed to the Commission. However, the recommendation portion of the Report has been envisioned as an agenda and stimulus to any other entity—Member States, national libraries, the publishing industry, expert groups, etc.—that may promote or influence public domain related decisions. In addition, an inner integration between public domain projects at the European level and the international level is a goal recommended by Communia. This may be easily done by strengthening a more qualified presence of the EU during discussion and negotiations of public domain issues within the WIPO Development Agenda framework.

  • 133 Samuelson (2003), p. 171.
  • 134 Ibid., pp. 171–72.
  • 135 Birnhack (2006), p. 60.

92The Communia policy recommendations seek to re-define the hierarchy of priorities embedded in the traditional politics of intellectual productions and creativity. Any public policy of creativity should promote the idea that ”information is not only or mainly a commodity; it is also a critically important resource and input to learning, culture, competition, innovation and democratic discourse”.133 The agenda of the information society cannot be dictated by commercial interests above and beyond any of the fundamental values that shape our community. This approach would be a myopic understatement of the relevance of information in the ”information society”. Therefore, ”intellectual property must find a home in a broader-based information policy, and be a servant, not a master, of the information society”.134 In other words, the new policy for creativity envisioned by Communia shall revolve around the founding principle that the public domain is not ”an unintended by product, or ”graveyard” of copyrighted works but its very goal”.135 If Europe is eager to take up a leading role in the digital environment as stated in the i2010 strategy and the Digital Agenda, it is time to depart from the idea that the only paradigm available is a politics of intellectual property. Instead, it is pivotal to develop a global strategy and a new politics of the public domain. To quote again from The Public Domain Manifesto: private incentive to create shall naturally follow like exceptions from the rule.

93The Communia proposal for a new politics for the public domain shall encompass the review of the following strategic subject matters:

  • Term of protection
  • Copyright harmonisation
  • Exceptions and limitations
  • Misappropriation of public domain material
  • Technological protection measures
  • Registry system
  • Orphan works
  • Memory institutions and digitization projects
  • Open access to research
  • Public sector information
  • Alternative remuneration systems and cultural flat rate

94A politics for the public domain should (1) redress the many tensions with copyright protection by re-discussing the term of protection, re-empowering exceptions and limitations, harmonising relevant rules and adapting them to technological change; (2) positively protect the public domain against misappropriation and technological protection measures; (3) propel digitization projects and conservation of the European cultural heritage by solving the orphan works problem and implementing a registry system; (4) open access to research and public sector information; (5) and promote new business models to enhance creativity, including alternative remuneration systems and a cultural flat rate.

  • 136 David Lange, ”Reimagining the Public Domain”, Law and Contemporary Problems, 66 (2003), 463-83 (p. (...)

95A politics of the public domain is needed to protect our intellectual domain as much as a strategy for national security is required to protect our physical home. Lange has argued that we are all citizens of the public domain.136 The public domain is our country and our home. Enclosure and propertisation of the public domain correspond to depriving citizens of their country and homes. Any policy oriented to the enhancement of creativity should be respectful of our citizenship of the public domain and should nourish, protect, and promote it.

96A stronger public domain will make Europe stronger and richer. It will help the region earn a central and crucial place in fostering new creativity. The ability to promote new creativity will allow Europe to appropriate unexplored social and economic value that lies in the digital realm and raise income levels across the continent.

97The European advantage in promoting the public domain can be seen from multiple angles. Firstly, much value is still to be extracted from public sector information, if compared to other jurisdictions. Europe is a late entry in the market for public sector information. According to estimates, 7% of the United States GDP is coming from public sector information, whereas only 0.5% of European Union GDP is coming from that source. Several studies have highlighted that a public domain approach to weather, geographical data, and public sector information in general, may yield a substantial long-term value for Europe, running into the tens of billions or hundreds of billions of euros. Open access to public sector information will entail a considerable added value for the European market.

98A stronger public domain will also help Europe to achieve its goal of creating a European digital public library. The Europeana platform is up and running. This is the only international project of its kind. Other jurisdictions are in the process of abdicating their public role in developing digital libraries and digitization projects to private parties. This is not the European vision. Europe values public interest and full public access above all. However, in order not to lag behind private projects, such as Google Books, and suffer from negative network effects, Europe should strive to build a digital public library that can fully unlock the riches of digitization to European society at large. To that end, a European digital public library must be capable of including orphan works as well as access to information, sampling, and purchase of copyrighted in-print and out-of-print material.

99Open access to scientific and academic publications and new business models, such as alternative remuneration systems and cultural flat rates that favour access and the reuse and remix of information, will be the tools of European cultural growth and enhanced creativity. As discussed at Communia meetings, networks of open knowledge environments may spread across European academic and public interest institutions. Open access will propel collaborative research and educational opportunities through interactive portals and functions such as wikis, forums, blogs, journals, post publication reviews, repositories and distributed computing.

  • 137 A Digital Agenda, p. 3.

100In a modern, networked Europe, open and free public sector information, together with public domain material, will be the building blocks of our cumulative knowledge and innovation. Exceptions for scientific and academic purposes, open access to academic publications and easy remix promoted by alternative business models, will empower fast and efficient processing and reuse of other protected material while lowering transaction costs. A pan-European digital library will assure access to and widen the distribution of knowledge with the enhanced tools of computational analysis to foster new research opportunities, such as the digital humanities and genomics. Additionally, a digital public library will push forth the rediscovery of currently unused or inaccessible works, open up the riches of knowledge in formats that are accessible to persons with disabilities and empower a superior democratic process by favouring access regardless of users’ market power. It will be a perfectly efficient integrated environment for boosting knowledge, research, and follow-up innovation. The goal of the Digital Agenda—”to deliver sustainable economic and social benefits from a digital single market based on fast and ultra fast internet and interoperable applications”—perfectly supports this vision.137 Communia policy recommendations are meant to be one initial, but substantial, step towards making this vision come true.

101Additionally, if we look at the traditional market for creativity, we can see that there is a considerable added value for Europe to invest in a lead role in the market for open and public domain business models. Businesses based on legacy intellectual property models have been the strength of the US economy (Hollywood, Microsoft, Apple, pharmaceutical and biotechnological companies, etc.). Most of the economic value created by those models has been harvested in places other than Europe. Moreover, the dominance of imported cultural paradigms and industries has increasingly propelled pernicious forms of cultural colonisation. The negative externalities are immense, especially in terms of impoverishment and the blurring of our cultural diversity. At the same time, an open, decentralised, networked model for creativity would boost cultural diversity at unprecedented levels. The rich linguistic and cultural diversity of Europe, coupled with a net deficiency of European intellectual property industries, makes the EU the ideal candidate to extract value from an open digital agenda and for successful deployment of cooperative, network-driven enterprises. Further, as previously noted, the European Internal Market may become a haven for fair use industries, thanks to the legal certainty of its predefined list of exceptions to copyright, as opposed to the unpredictable case-by-case fair use system of the US.

  • 138 See Neelie Kroes, ”A Digital World of Opportunities” (2010).
  • 139 See Joseph Schumpeter, Capitalism, Socialism and Democracy (New York: Harper, 1976) [1942], p. 83.

102If Europe takes control of creativity in the digital environment, Europe will take full control of its future. However, the sole way for Europe to acquire this edge is to promote the immense cultural diversity that lies in the European public domain, as enhanced by the ubiquity and power of propagation of digitization. In order to do so, Europe needs to be innovative, creative and unafraid to challenge outdated and inefficient business models. It should fully empower the values of public participation, collaboration and innovation. When radical innovation become the new paradigm, the innovator will leapfrog ahead of former leaders who are incapable of changing fast enough, having been trapped by the strength and privileges of the traditional gatekeepers. Radical innovation is coming along regardless of the fact that the Ancien Régime, as Kroes has termed it, may attempt to retard its advent.138 As Joseph Schumpeter would have put it, to best leapfrog all of its competitors, the European Union should take the opportunity to go full sail out of the Digital Dark Age into the Digital Enlightenment, blown by the wind of creative change.139

Notes

1 Johann Wolfgang von Goethe, cited in Martha Woodmansee and Peter Jaszi, ”The Law of Text: Copyright in the Academy”, College English, 57 (1995), 769-87.

2 See James Boyle, ”The Second Enclosure Movement and the Construction of the Public Domain”, Law and Contemporary Problems, 66 (2003), 33-74 (p. 62).

3 Pamela Samuelson, ”Mapping the Digital Public Domain: Threats and Opportunities”, Law and Contemporary Problems, 66 (2003), 147-61.

4 David Lange, ”Recognizing the Public Domain”, Law and Contemporary Problems, 24 (1981), 147-81.

5 Séverine Dusollier, ”Towards a Legal Infrastructure for the Public Domain”, paper delivered at the first Communia workshop, Turin, Italy (18 January 2008). Please note that any of the materials cited in this Report and Annexes related to proceedings of Communia meetings can be found at http://www.communia-project.eu.

6 Michael D. Birnhack, ”More or Better? Shaping the Public Domain”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by P. Bernt Hugenholtz and Lucie Guibault (Kluwer Law International, 2006), 59-86 (p. 60).

7 See The Public Domain Manifesto at the beginning of this volume; also available at http://publicdomainmanifesto.org.

8 James Boyle, The Public Domain: Enclosing the Commons of the Mind (New Haven: Yale University Press, 2008), p. 40.

9 See Lawrence Lessig, ”The Architecture of Innovation”, Duke Law Journal, 51 (2002), 1783-1801 (p. 1788); but see James Boyle, ”The Second Enclosure Movement and the Construction of the Public Domain”, pp. 33, 69 n., 145.

10 See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven: Yale University Press, 2006), pp. 63–68. Benkler describes free software as ”the quintessential instance of commons-based peer production”.

11 See Mark Rose, ”Copyright and its Metaphors”, UCLA Law Review, 50 (2002), 1-15; William St Clair, ”Metaphors of Intellectual Property”, in Privilege and Property: Essays on the History of Copyright, ed. by Ronan Deazley, Martin Kretschmer and Lionel Bently (Cambridge: Open Book Publishers, 2010), 369-95 (pp. 391–92).

12 See James Boyle, ”Foreword: The Opposite of Property?”, Law and Contemporary Problems, 66 (2003), 1-32 (p. 8).

13 See Charlotte Hess and Elinor Ostrom, ”Introduction: An Overview of the Knowledge Commons”, in Understanding Knowledge as a Commons: From Theory to Practice, ed. by Charlotte Hess and Elinor Ostrom (Cambridge, MA: MIT Press, 2007), pp. 3–26.

14 See James Boyle, ”Cultural Environmentalism and Beyond”, Law and Contemporary Problems, 70 (2007), 5-21; and James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, MA: Harvard University Press, 1996).

15 See also Communia, Survey of Existing Public Domain Competence Centers, Deliverable No. D6.01 (Draft, 30 September 2009) (survey by Federico Morando and Juan Carlos De Martin for the European Commission—on file with the author). The survey reviews the present situation of European competence and excellence centres for the study of the public domain and related issues from different disciplinary perspectives.

16 See Development Agenda for WIPO, http://www.wipo.int/ip-development/en/agenda; see also Séverine Dusollier, ”Scoping Study On Copyright And Related Rights and the Public Domain”, prepared for the Word Intellectual Property Organization (30 April 2010), p. 69, available at http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_4/cdip_4_3_rev_study_ inf_1.pdf.

17 See Richard Owens, ”WIPO and Access to Content: The Development Agenda and the Public Domain”, paper delivered at the fifth Communia workshop, London (27 March 2009); see also Richard Owens, ”WIPO Project on Intellectual Property and the Public Domain”, paper delivered at the seventh Communia workshop, Luxembourg (1 February 2010).

18 See Lawrence Lessig, The Future of Ideas: The Fate of The Commons in a Connected World (New York: Vintage, 2002); see also Michael J. Madison, Brett M. Frischmann and Katherine J. Strandburg, ”Constructing Commons in the Cultural Environment”, Cornell Law Review, 95 (2010), 657-609 (p. 659); Molly Shaffer Van Houweling, ”Cultural Environmentalism and the Constructed Commons”, Law and Contemporary Problems, 70 (2007), 23-50 (pp. 25-26, 40-48); Jerome H. Reichman and Paul F. Uhlir, ”A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property”, Law and Contemporary Problems, 66 (2003), 315-462.

19 See Robert P. Merges, ”A New Dynamism in the Public Domain”, University of Chicago Law Review, 71 (2004), 183-203 (pp. 186–91).

20 See Stefano Rodotà, ”Se il mondo perde il senso del bene comune”, La Repubblica, 10 August 2010.

21 See Charter of Fundamental Rights of the European Union, 18 December 2000, 2000 O.J. (C364), pp. 1, 8, 37.

22 Rufus Pollock, ”The Value of the Public Domain” (UK Institute for Public Policy Research, 2006), p. 4.

23 See ibid., p. 5.

24 See International Book Shop, http://www.ibs.it.

25 See Massimo Nosetti, ”Il maestro dell’organo fuori dal copyright”, in Il Giornale della Musica, November 2008, p. 38.

26 See Paul A. David and Jared Rubin, ”How Many Scanned Books on the Web?” (SIEPER Policy Briefs, December 2008), pp. 6–7.

27 See Pollock (2006), p. 8.

28 See, for example, Felix Oberholzer-Gee and Koleman Strumpf, ”File-Sharing and Copyright”, Innovation Policy and the Economy, 10 (2010), 19-55 (pp. 19, 34–38); Felix Oberholzer-Gee and Koleman Strumpf, ”The Effect of File Sharing on Record Sales: An Empirical Analysis”, Journal of Politcal Economy, 115 (2004), 1-42; Fabrice LeGuel and Fabrice Rochelandet, ”P2P Music-Sharing Networks: Why the Legal Fight Against Copiers May Be Inefficient?” (Social Science Research Network Working Paper Series, 2005), which uses a unique dataset collected from more than 2,500 French households; but, for example, Stan J. Liebowitz, ”How Reliable is the Oberholzer-Gee and Strumpf Paper on File-Sharing?” (University of Texas at Dallas, Working Paper, August 2007); Stan J. Liebowitz, ”File Sharing: Creative Destruction or Just Plain Destruction?”, Journal of Law and Economics, 49 (2006), 1-28.

29 See Oberholzer-Gee and Strumpf (2010), pp. 46–49.

30 See Pollock (2006), pp. 11–13.

31 Ibid., p. 14; Pira International, ”Commercial Exploitation of Europe’s Public Sector Information” (30 October 2000) (report prepared for the European Commission, Information Society Directorate General); Richard E. W. Pettifer, ”Towards a Stronger European Market in Applied Meteorology”, Meteorological Applications, 15/2 (2008), 305- 12; see also Peter Weiss, ”Borders in Cyberspace: Conflicting Government Information Policies and their Economic Impact”, summary report (February 2002), available at http://www.nws.noaa.gov/sp/Borders_report.pdf.

32 See Paul Uhlir, ”Measuring the Economic and Social Benefits and Costs of Public Sector Information Online: A Review of the Literature and Future”, paper delivered at the first Communia conference, Louvain-la-Neuve, Belgium (30 June 2010).

33 See Thomas Rogers, Andrew Szamosszegi and Peter Jaszi, ”Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use” (September 2007). Study prepared for the Computer & Communications Industry Association (ccianet.org).

34 See Dellar v. Sam el Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (per c riam), which describes the fair se doctrine as ”the most tro blesome doctrine in the whole of copyright”.

35 Joseph E. Stiglitz, ”Public Policy for a Knowledge Economy”, address to the Department

36 See Sanford J. Grossman and Joseph E. Stiglitz, ”On the Impossibility of Informationally Efficient Markets”, American Economic Review, 70/3 (1980), 393–408.

37 Boyle (2008), pp. 39–41.

38 David Bollier, ”The Commons as New Sector of Value Creation: It’s Time to Recognize and Protect the Distinctive Wealth Generated by Online Commons”, remarks at the Economies of the Commons: Strategies for Sustainable Access and Creative Reuse of Images and Sounds Online Conference, Amsterdam (12 April 2008).

39 See Benkler (2007).

40 Ibid., p. 101; see also Jerome H. Reichman, ”Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation”, Vanderbilt Law Review, 53 (2000), 1743-98.

41 Rishab Aiyer Ghosh, ”Technology, Law, Policy and the Public Domain”, paper delivered at the first Communia workshop, Turin (18 January 2008).

42 See Jerome H. Reichman, ”Formalizing the Informal Microbial Commons: Using Liability Rules to Promote the Exchange of Materials”, paper delivered at the second Communia conference, Turin (30 June 2009).

43 See Paul F. Uhlir, ”Revolution and Evolution in Scientific Communication: Moving from Restricted Dissemination of Publicly-Funded Knowledge to Open Knowledge Environments”, paper delivered at the second Communia conference, Turin (28 June 2009).

44 See Diaspora: https://joindiaspora.com.

45 See Kickstarter, ”Decentralize the Web with Diaspora”, available at http://www. kickstarter.com/projects/196017994/diaspora-the-personally-controlled-do-it-all-distr.

46 See Lawrence Lessig, Free Culture: The Nature and Future of Creativity (London: Penguin, 2005).

47 See Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin, 2008).

48 Samuelson (2003), p. 147.

49 Bollier (2008).

50 Marco Ricolfi, ”Copyright Policies for Digital Libraries in the Context of the i2010 Strategy”, paper presented at the first Communia conference, Louvain-la-Neuve (1 July 2008).

51 See Europeana: http://www.europeana.eu/portal.

52 See The Online Books Page: http://onlinebooks.library.upenn.edu.

53 See The Hathi Trust Digital Library: http://www.hathitrust.org/about.

54 See Patricia Cohen, ”Digital Keys for Unlocking the Humanities’ Riches”, The New York Times, 16 November 2010.

55 See Google Books’ Ngram Viewer, http://books.google.com/ngrams/ (discussing the gigantic database made by Google from nearly 5.2 million digitized books available to the public for free downloads and online searches); see also Patricia Cohen, ”In 500 Billion Words, New Window on Culture”, The New York Times, 16 December 2010.

56 Charles Nesson with Juan Carlos De Martin, ”Communia and Universities”, welcome address at the third Communia conference, Turin (28 June 2010), available at http://www. communia-project.eu/node/459

57 Ricolfi (2008), p. 15.

58 See Jerome H. Reichman and Jonathan A. Franklin, ”Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information”, University of Pennsylvania Law Review, 147 (1999), 875-970.

59 See P. Bernt Hugenholtz, ”Owning Science: Intellectual Property Rights as Impediments to Knowledge Sharing”, paper delivered at the second Communia conference, Turin (29 June 2001).

60 Boyle (2008), pp. 54–82.

61 Paul A. David and Jared Rubin, ”Restricting Access to Books on the Internet: Some Unanticipated Effects of U.S. Copyright Legislation”, Review of Economic Research on Copyright Issues, 5 (2008), 23-53 (p. 50).

62 Yochai Benkler, ”Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain”, New York University Law Review, 74 (1999), 354-446.

63 See Boyle (2003 and 2008); see also Keith Maskus and Jerome H. Reichman, ”The Globalization of Private Knowledge Goods and The Privatization of Global Public Goods”, Journal of International Economic Law, 7 (2004), 279-320; David Bollier, Silent Theft: The Private Plunder of Our Common Wealth (New York: Routledge, 2002).

64 See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (London: Earthscan, 2002).

65 P. Bernt Hugenholtz and Lucie Guibault, ”The Future of the Public Domain: An Introduction”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), 1-6.

66 See Hess and Ostrom (2007), p. 12.

67 See H. Scott Gordon, ”The Economic Theory of a Common-Property Resource: The Fishery”, Journal of Political Economy, 62 (1954), 124-42; and Anthony D. Scott, ”The Fishery: The Objectives of Sole Ownership”, Journal of Politcal Economy, 63 (1955), 116-24, which introduces an economic analysis of fisheries that demonstrates that unlimited harvesting of high-demand fish by multiple individuals is both economically and environmentally unsustainable); see also Chander Anupam and Sunder Madhavi, ”The Romance of the Public Domain”, California Law Review, 92 (2004), 1331-74 (pp. 1332–33).

68 See generally Lee A. Fennell, ”Commons, Anticommons, Semicommons”, in Research Handbook on the Economics of Property Law, ed. by Kenneth Ayotte and Henry E. Smith (Cheltenham: Edward Elgar, 2010), 35-56.

69 See Garrett Hardin, ”The Tragedy of the Commons”, Science, 162 (1968), 1243-48.

70 Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford University Press, 1994), p. 236; see also Wagner R. Polk, ”Information Wants to Be Free: Intellectual Property and the Mythologies of Control”, Columbia Law Review, 103 (2003), 995-1034 (arguing that ”increasing the appropriability of information goods is likely to increase, rather than diminish, the quantity of ‘open’ information”).

71 See William Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, MA: Harvard University Press, 2003); William Landes and Richard A. Posner, ”Indefinitely Renewable Copyright”, University of Chicago Law Review, 70 (2003), 471-518 (pp. 475, 483).

72 See Yochai Benkler, ”A Political Economy of the Public Domain: Markets in Information Goods Versus the Marketplace of Ideas”, in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society, ed. by Rochelle Dreyfuss, Diane L. Zimmerman and Harry First (Oxford: Oxford University Press, 2001), pp. 267–94 (pp. 270–72).

73 See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990); Elinor Ostrom, Roy Gardner and James Walker, Rules, Games, and Common-Pool Resources (Ann Arbor: University of Michigan Press, 1994); and Elinor Ostrom, The Drama of the Commons (Washington, DC: National Academies Press, 2002).

74 See Hess and Ostrom, p. 11; Rights to Nature: Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment, ed. by Susan S. Hanna, Carl Folke, and Karl-Gören Mäler (Washington, DC: Island Press, 1996); Making the Commons Work: Theory, Practice and Policy, ed. by Daniel W. Bromley, David Feeny et al. (San Francisco: ICS Press, 1992); Commons Without Tragedy: The Social Ecology of Land Tenure and Democracy, ed. by Robert V. Andelson (London: Center for Incentive Taxation, 1991); David Feeny, Fikret Berkes, Bonnie J. McCay, and James M. Acheson, ”The Tragedy of the Commons: Twenty-Two Years Later”, Human Ecology, 18 (1990), 1-19.

75 See Carol M. Rose, ”The Comedy of the Commons: Custom, Commerce, and Inherently Public Property”, University of Chicago Law Review, 53 (1986), 711-81.

76 Lawrence Lessig, ”Re-crafting a Public Domain”, Yale Journal of Law and the Humanities, 18 (2006), 56-83 (p. 64).

77 Michael A. Heller, ”The Tragedy of the Anticommons: Property in the Transition from Marx to Markets”, Harvard Law Review, 111 (1998), 621-88.

78 See Paul A. David, ”New Moves in ‘Legal Jujitsu’ to Combat the Anti-commons: Mitigating IPR Constraints on Innovation by a ‘Bottom-up’ Approach to Systemic Institutional Reform”, paper presented at the first Communia conference, Louvain-la-Neuve (30 June 2008).

79 See Anna Vuopala, ”Assessment of the Orphan Works Issue and Cost for Rights Clearance” (May 2010), p. 10. Report prepared for the European Commission, DG Information Society and Media, Unit E4, Access to Information.

80 See Statute of Anne, 1709, 8 Ann., c. 19 (Eng.)

81 Hinton v. Donaldson, Mor 8307 (1773) (Lord Kames).

82 See European Parliament and Council Directive 2011/77/EU Amending Directive 2006/116/EC on the Term of Protection of Copyright and Related Rights, 2011 O.J. (L 265) 1 (27 September 2011).

83 Stef van Gompel, ”Extending the Terms of Protection for Related Rights Endangers a Valuable Public Domain”, paper presented at the second Communia workshop, Vilnius (31 March 2008).

84 See P. Bernt Hugenholtz et al., ”The Recasting of Copyright & Related Rights for the Knowledge Economy” (November 2006), report to the European Commission, DG Internal Market, pp. 164–66.

85 Commission Communication on Copyright In The Knowledge Economy, COM (2009) 532 final (19 October 2009), pp. 5–6.

86 Mark Davison, ”Database Protection: The Commodification of Information”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), pp. 167–89.

87 See Berne Convention for the Protection of Literary and Artistic Works, Art. 5(2), 9 September 1886, as last revised at Paris on 24 July 1971 and amended on 28 September 1978, 1161 U.N.T.S. 30.

88 See also Stef van Gompel, ”Formalities in the Digital Era: An Obstacle or Opportunity?”, in Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace, ed. by Lionel Bently, Uma Suthersanen and Paul Torremans (Cheltenham: Edward Elgar, 2010), pp. 395–424. Van Gompel argues that, in the pre-digital era, the objections against copyright formalities were real and, in the light of the changes caused by the advent of digital technologies, there is now sufficient reason to reconsider subjecting copyright to formalities.

89 See ”Opinion of European Academics on Anti-Counterfeiting Trade Agreement”, p. 6, available at http://www.iri.uni-hannover.de/tl_files/pdf/ACTA_opinion_200111_2.pdf.

90 See Boyle (2008), p. 104; Samuelson (2003), p. 161.

91 See Lucie Guibault et al., ”Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society” (February 2007), report prepared for the European Commission, DG Internal Market, ETD/2005/IM/D1/91, pp. 102–33 (discussing the relation between limitation and TPMs); see also Mireille Van Eechoud, P. Bernt Hugenholtz, Lucie Guibault, Stef Van Gompel and Natali Helberger, Harmonizing European Copyright Law: The Challenges Of Better Lawmaking (Kluwer Law International, 2009), pp. 131–79.

92 See Common Position No. 48/2000 of 28 September 2000 adopted by the Council, with a view to adopting a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, 2000 O.J. (C 344) 01, 19 (1 December 2000), available at http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:C:2000:344:0001:0022:EN:PDF; see also Kamiel J. Koelman, ”The Public Domain Commodified: Technological Measures and Productive Information Use”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), pp. 108–09.

93 Guibault et al., Study on Directive 2001/29/EC, p. 106; see also Nora Braun, ”The Interface Between The Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and the European Community”, European Intellectual Property Review, 25 (2003), 496-503 (p. 499).

94 See Lucie Guibault, ”Wrapping Information in Contract: How Does it Affect the Public Domain?”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), pp. 87–104; Lucie Guibault, Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (Kluwer Law International, 2002); Lydia Pallas Loren, ”Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse”, Ohio Northern University Law Review, 30 (2004), 495-535; Samuelson (2003), pp. 155–58, 163; P. Bernt Hugenholtz, ”Copyright, Contract and Code: What Will Remain of the Public Domain?”, Brooklyn Journal of International Law, 26 (2000), 77-90; Niva Elkin-Koren, ”Copyright Policy and the Limits of Freedom of Contract”, Berkeley Technology Law Journal, 12 (1997), 93-113.

95 Lucie Guibault, ”Evaluating Directive 2001/29/EC in the Light of the Digital Public Domain”, paper presented at the first Communia conference, Louvain-la-Neuve (1 July 2008); an updated version of Guibault’s paper can be found in this volume (Chapter 3).

96 Ibid.

97 Benkler, ”Free as the Air to Common Use” (1999), p. 393; see also Christopher S. Yoo, ”Copyright and Democracy: A Cautionary Note”, Vanderbilt Law Review, 53 (2000), 1933-63 (pp. 1935–52); Neil W. Netanel, ”Market Hierarchy And Copyright in Our System of Free Expression”, Vanderbilt Law Review, 53 (2000), 1879-1932; Neil W. Netanel, ”Copyright and Democratic Civil Society”, Yale Law Journal, 106 (1996), 283-387.

98 The European Task Force on Culture and Development, ”In From the Margins: A Contribution to the Debate on Culture and Development in Europe” (1997), report prepared for the Council of Europe, p. 276.

99 Neelie Kroes, ”A Digital World of Opportunities”, speech delivered at the Forum d’Avignon: Les Rencontres Internationales de la Culture, de l’Économie et des Medias, Avignon, France, SPEECH/10/619 (5 November 2010).

100 Germann Avocats et al, ”Implementing the UNESCO Convention of 2005 in the European Union” (May 2010), study prepared for the European Parliament Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Policies, Culture and Education, available at http://www.diversitystudy.eu/ms/ep_study_long_version_20_ nov_2010_final.pdf.

101 See Fiona Macmillan, ”Public Interest and The Public Domain in an Era Of Corporate Dominance”, in Intellectual Property Rights: Innovation, Governance and The Institutional Environment, ed. by Brigitte Andersen (Cheltenham: Edward Elgar, 2006), pp. 46-69 (pp. 49–52); and Fiona Macmillan, ”Commodification and Cultural Ownership”, in Copyright And Free Speech: Comparative And International Analyses, ed. by Jonathan Griffiths and Uma Suthersanen (Oxford: Oxford University Press, 2003), pp. 35-65 (pp. 44–48).

102 See Guy Pessach, ”Copyright Law as a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities”, Southern California Law Review, 76 (2003), 1067-1104 (p. 1068).

103 Fiona Macmillan, ”The Dysfunctional Relationship Between Copyright and Cultural Diversity”, Quaderns Del CAC, 27 (2007), 101–10; see also Fiona Macmillan, ”Copyright, the World Trade Organization, and Cultural Self-Determination”, in New Directions in Copyright Law, vol. 6, ed. by Fiona Macmillan (Cheltenham: Edward Elgar, 2007), pp. 307–34 (pp. 313–19); and Fiona Macmillan, ”The Cruel ©: Copyright and Film”, European Intellectual Property Review, 24 (2002), 483–92 (pp. 488–89).

104 Benkler (1999), p. 410.

105 See Benkler (2001), pp. 272–85 (reviewing in detail the effects of intellectual property approaches to organizing information production); see also Benkler (1999), pp. 400–08.

106 Benkler (1999), p. 410.

107 See Federico Morando and Prodromos Tsiavos, Cultural Heritage Rights in the Age of Digital Copyright (forthcoming).

108 For an account of copyright industry political influence in the US and worldwide, see Jessica Litman, Digital Copyright (Amherst: Prometheus, 2001), pp. 22–69; see also Neil W. Netanel, ”Why Has Copyright Expanded?: Analysis and Critique”, in New Directions in Copyright Law, vol. 6, ed. by Fiona Macmillan (Cheltenham: Edward Elgar, 2008), pp. 3–34 (pp. 3–11).

109 See Mançur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, MA: Harvard University Press, 1971).

110 European Commission, A Digital Agenda for Europe, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM (2010) 245, Brussels (19 June 2010), available at http://ec.europa. eu/information_society/digital-agenda/documents/digital-agenda-communication-en.pdf, p. 7

111 See Litman (2001) and Jessica Litman, ”Real Copyright Reform”, Iowa Law Review, 96 (2010), 1-55.

112 See Hugenholtz, et al. (2006), pp. 31–41.

113 See Guibault (2008), pp. 5–7.

114 See Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, Art. 5, 2001 O.J. (L 167) 10, 17 (22 May 2001).

115 See Olson (1971).

116 See The Europeana Public Domain Charter, http://version1.europeana.eu/web/europeana-project/publications.

117 See Jill Cousins, ”The Public Domain, the Manifesto, his Charter and her Dilemma”, paper delivered at the seventh Communia workshop, Luxembourg (1 February 2010).

118 See ”Charter for Innovation, Creativity and Access to Knowledge: Citizens’ and Artist’s Rights in the Digital Age”, Barcelona Free Culture Forum, http://fcforum.net/. It states in its preamble that ” [f]ree culture opens up the possibility of new models for citizen engagement in the provision of public goods and services. These are based on a ‘commons’ approach. ‘Governing of the commons’ refers to negotiated rules and boundaries for managing the collective production and stewardship of and access to, shared resources. Governing of the commons honours participation, inclusion, transparency, equal access, and long-term sustainability. We recognise the commons as a distinctive and desirable form of governing. It is not necessarily linked to the state or other conventional political institutions and demonstrates that civil society today is a potent force. [...]. In this context, the public interest is best served by supporting and ensuring continued creation of intellectual works of significant societal value, and to ensure all citizens have unfettered access to such works for a wide variety of uses…”; see also Evolution Summit 2010, http://d-evolution.fcforum.net/en (endorsing very similar principles).

119 See Panton Principles: Principles for Open Data in Science, http://pantonprinciples.org.

120 See Europeana: Think Culture, http://www.europeana.eu/portal.

121 See LAPSI: Legal Aspects of Public Sector Information, http://www.lapsi-project.eu.

122 See Public Domain in Europe, Rightscom, http://www.rightscom.com/Default. aspx?tabid=20397.

123 See Mark Isherwood, ”European Commission Project: Economic and Social Impact of the Public Domain. Introduction to Methodology”, paper presented at the first Communia conference, Louvain-la-Neuve (30 June 2008).

124 See Sophia Jones and Alek Tarkowski, ”Digital Repository Infrastructure Vision for European Research: DRIVER project”, paper delivered at the first Communia workshop, Turin (18 January 2008); Karen Van Godtsenhoven, ”The DRIVER Project: On the Road to a European Commons for Scientific Communication”, paper delivered at the first Communia conference, Louvain-la-Neuve (30 June 2008). An updated version of Van Godtsenhoven’s paper can be found in this volume (Chapter 9).

125 See DRIVER, Digital Repository Infrastructure Vision for European Research, http://www.driver-repository.eu; see also Van Godtsenhoven, ”The DRIVER Project”.

126 See ARROW: Accessible Registries of Rights Information and Orphan Works, http://www.arrow-net.eu.

127 See DARIAH: Digital Research Infrastructure for the Arts and Humanities, http://www.dariah.eu.

128 See Public Domain Works, http://www.publicdomainworks.net.

129 See Jonathan Gray, ”Public Domain Calculators”, presentation delivered at the third Communia workshop, Amsterdam (20 October 2008); see also Public Domain Calculators, http://wiki.okfn.org/PublicDomain Calculators.

130 See Jonathan Gray, Rufus Pollock and Jo Walsh, ”Open Knowledge: Promises and Challenges”, paper delivered at the first Communia workshop, Turin (18 January 2008). An updated version of this paper can be found in this volume (Chapter 7).

131 See La Quadrature du Net, http://www.laquadrature.net.

132 See Knowledge Exchange, http://www.knowledge-exchange.info.

133 Samuelson (2003), p. 171.

134 Ibid., pp. 171–72.

135 Birnhack (2006), p. 60.

136 David Lange, ”Reimagining the Public Domain”, Law and Contemporary Problems, 66 (2003), 463-83 (p. 475).

137 A Digital Agenda, p. 3.

138 See Neelie Kroes, ”A Digital World of Opportunities” (2010).

139 See Joseph Schumpeter, Capitalism, Socialism and Democracy (New York: Harper, 1976) [1942], p. 83.

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