COMMUNIA has valued the goal of grasping the inner meaning of the public domain as pivotal to the challenging task of its promotion and protection. Defining the boundaries of the public domain is conducive to the goal of strengthening its protection.

The public domain is an “unchartered terrain.”^[1] The literature on the public domain transfers an impression of insubstantiality, the conception of the public domain as a nebulae.^[2] Repeatedly, the literature notes, as a response to the variety of definitional approaches, that there are many public domains that change in shape according to the hopes and the agenda that they embody.^[3] The public domain, therefore, becomes “necessarily protean in nature.”^[4] The diversity of the COMMUNIA network has provided an opportunity to internalize the 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, a project of enhanced democracy, globalized shared culture and reciprocal understanding.

To that end, COMMUNIA has attempted to propel a process of definitional re-construction of the public domain in positive and affirmative terms. Consequently, COMMUNIA envisions the public domain as a very substantial element of attraction to aggregate social forces devoted to promote public access to culture and knowledge.

In Search of an Affirmative Definition of the Public Domain

Authors suggested that the Statute of Anne actually created the public domain, by limiting the duration of protected works and by introducing formalities.^[5] However, in early copyright law, there was no positive term to affirmatively refer to the public domain, though terms like publici juris or propriété publique had been employed by 18th century jurist.^[6] Nonetheless, the fact of the public domain was recognized, though no single locution captured that concept. Soon, the fact of the public domain was elaborated into a “discourse of the public domain - that is, the construction of a legal language to talk about public rights in writings.”^[7] 

Historically, the term public domain has been firstly employed in France by the mid-19th century to mean the expiration of copyright.^[8] The English and American copyright discourse borrowed the term around the time of the drafting of the Berne Convention with the same meaning.^[9] Traditionally, the public domain has been defined in relation to copyright as the opposite of property, as the “other side of the coin of copyright” that “is best defined in negative terms”.^[10] This 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.”^[11] This is no more. This definitional approach has been discarded in the last thirty years.

In 1981, Professor David Lange published his seminal work, Recognizing the Public Domain, and departed from the traditional line of investigation of the public domain. Lange suggested that “recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain.”^[12] Lange called for an affirmative recognition of the public domain and drafted the skeleton of a theory of the public domain. The public domain that Lange had in mind would become a “sanctuary conferring affirmative protection against the forces of private appropriation” that threatened creative expression.^[13] 

In January 2008, Séverine Dusollier reinstated that idea at the 1st COMMUNIA Workshop by speaking of a “positively defined Public Domain.”

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.^[14]

The affirmative public domain was a powerfully attractive idea for the scholarly literature and civic society. Lange spearheaded a “conservancy model”, concerned with promoting the public domain and protecting it against any threats, that juxtaposed the traditional “cultural stewardship model” which regarded ownership as the prerequisite of productive management.^[15] The positive identification of the public domain propelled the “public domain project”, as Michael Birnhack called it.^[16] 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. As the Public Domain Manifesto puts it, the public domain is the “cultural material that can be used without restriction . . . ,” which includes a structural core and a functional portion. The structural core of the public domain encompasses the “works of authorship where the copyright protection has expired” and the “essential commons of information that is not covered by copyright.”^[17]  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.”^[18] 

As a way of example, other very broad definitions of the public domain describe it as a “true commons comprising elements of intellectual property that are ineligible for private ownership.”^[19] The public domain becomes in other authors’ view the “synonymous with ‘open’ knowledge, that is, all ideas and information that can be freely used, redistributed and reused.”^[20] Narrower definitions entail “the range of uses of information that any person is privileged to make absent individualized facts that make a particular use by a particular person unprivileged.”^[21] Again, by remodeling Condorcet’s idea of public domain as a democratic access to a common cultural inheritance,^[22] the public domain has been envisioned as a public forum and a privileged venue for democratic discourse,^[23] or a “cultural landscape” where creativity becomes an opportunity for social relationships.^[24] 

In any event, a positive, affirmative definition of the public domain is fluid by nature and cannot be unique as traditional definitions. An affirmative definition of the public domain is a political statement, the endorsement of a cause. In other words, “[t]he public domain will change its shape according to the hopes it embodies, the fears it tries to lay to rest, and the implicit vision of creativity on which it rests.  There is not one public domain, but many.”^[25]

 However, notwithstanding many complementing definitional approaches, consistency is to be found in the common idea that the “material that compose our cultural heritage must be free for all to use no less than matter necessary for biological survival.”^[26] As a corollary, the many modern definitions of the public domain are unified by concerns over recent copyright expansionism. The common understanding of the participants to the public domain project is that enclosure of the “material that compose our cultural heritage” is a welfare loss against which society at large must be guarded from.

The modern definitional approach endorsed by the public domain project is intended to turn upside down the metaphor describing the public domain as what is “left over after intellectual property had finished satisfying its appetite”^[27] by thinking at copyright as “a system designed to feed the public domain providing temporary and narrowly limited rights, [. . .] all with the ultimate goal of promoting free access.”^[28] Moreover, the public domain envisioned by COMMUNIA and recent legal, public policy and economic analysis becomes the “place we quarry the building blocks of our culture.” ^[29]  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.

However, the construction of an affirmative idea of the public domain should always consider that the abstraction of the public domain is slippery. The depiction of the public domain as a chimera, or better a unicorn, pregnant of meaning but ephemeral, may drive away the consideration that the public domain seeks in order to counter the expansion of copyright.^[30] The public domain should not remain an affirmative concept in the abstraction of the platonic hyper-uranium. That concept must be embodied in a physical space that may be immediately and positively protected and nourished. As Professor Lange puts it, “the problems will not be resolved until courts have come to see the public domain not merely as an unexplored abstraction but as a field of individual rights fully as important as any of the new property rights.”^[31] 

Public Domain, Commons, and Cultural Environmentalism

The modern discourse on the public domain owes much to the legal analysis of the governance of the commons, natural resources used by many individuals in common. The phrase public domain has been used interchangeably with the term “commons,”,’ and its variations, such as “cultural commons,” “knowledge commons,” “intellectual commons,” “commons of the mind,” “informational commons.”^[32] 

However, commons and public domain are two different things. The main difference lies in the fact that a commons may be restrictive. The public domain is free of property rights and control. A commons, on the contrary, can be highly controlled, though the whole community has free access to the common resources. Free Software and Open Source Software are examples of intellectual commons.^[33] The source code is available to anyone to copy, use and improve under the set of conditions imposed by the General Public License.^[34] However, this kind of control is different than under traditional property regimes because no permission or authorization is required to enjoy the resource. These resources are protected by a liability rule rather than a property rule.^[35] A commons is defined by the notions of governance and sanctions, which may imply rewards, punishment, and boundaries.^[36]

Though public domain and commons are diverse concepts, the similarities are many. Since the origin of the public domain discourse, the environmental metaphor has been largely used to refer to the cultural public domain.^[37] Therefore, the traditional environmental conception of the commons was ported to the cultural domain and applied to intellectual property policy issues. Environmental and intellectual property scholars started to look at knowledge as a commons – a shared resource.^[38] Knowledge as a commons, as Elinor Ostrom defines it, “refers to all types of understanding gained through experience or study, whether indigenous, scientific, scholarly, or otherwise nonacademic. It also includes creative works, such as music and the visual and theatrical arts.”^[39] Cultural commons have been defined as “environments for developing and distributing cultural and scientific knowledge through institutions that support pooling and sharing that knowledge in a managed way.”^[40]

In 2003, the Nobel Prize Elinor Ostrom and her colleague Charlotte Hesse discussed the applicability of their ideas on the governance and management of common pool resources to the new realm of the intellectual public domain.^[41] The following literature continued to develop the concept of cultural commons in the footsteps of the analyses of Elinor Ostrom by adopting modified forms of Ostrom’s Institutional Analysis and Development (IAD) framework.^[42] The application of the literature on governing the commons to cultural resources brings a shift in approach and methodology from the previous discourse of the public domain. This different approach has been described as follows:

[t]he old dividing line in the literature on the public domain had been between the realm of property and the realm of the free. The new dividing line, drawn as a palimpsest on the old, is between the realm of individual control and the realm of distributed creation, management, and enterprise. ^[43] 

Under this conceptual scheme, restraint on use may not be longer an evil but a necessity of a well-run commons. The individual, legal, and market based control of the property regime is juxtaposed to the collective and informal controls of the well-run commons.^[44] The well-run commons can avoid the tragedy of the commons without the need of single party ownership.

The movement to preserve the environmental commons has also been inspirational to the advocates of the intellectual public domain to develop a new politics of intellectual property.^[45] The environmental metaphor has propelled what can be termed as a cultural environmentalism.^[46] Several authors spearheaded by Professor James Boyle have cast a defense of the public domain on the model of the environmental movement. Morphing the public domain into the commons, and casting the defense of the public domain on the model of the environmental movement, has the advantage of embodying the public domain in a much more physical idea, thus minimizing its abstraction and the related difficulty of affirmatively protecting it.

Their primary focus of the cultural environmentalism is to develop an affirmative discourse that will make the public domain visible. The lesson from the environmentalist movement thought that, before the movement, the environment was invisible. Therefore, “like the environment”, Boyle suggests by echoing David Lange, “the public domain must be ‘invented’ before it can be saved.”^[47] In 2010, perhaps, the public domain has been “invented” as a positive concept and the “coalition that might protect it”, evoked if not called into being by scholars more than a decade ago, is perhaps formed.^[48] Many academic and civil society endeavors have joined and propelled this coalition. As with the idea of the environment in the environmentalist movement, the invention of the idea of a positively recognized public domain tied together apparently disparate interests in a cohesive movement.^[49] 

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 of Turin, 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 centers devote a substantial amount of their time to investigate the proper balance between intellectual property and the public domain.^[50] 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.^[51] Recommendation 20 of the Development Agenda endorses the goal “[t]o promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.” The WIPO Development Agenda is set to safeguard the public domain by encouraging a notion of the public domain not rooted in traditional copyright discourse but rather upon the idea of “access to content, irrespective of whether content is copyrighted.”^[52] Within the framework of recommendation 20 of the Development Agenda, WIPO is now promoting studies with respect to the public domain and the development of a public domain database.^[53] The WIPO efforts for the promotion of the public domain were presented at the 5th COMMUNIA Workshop in London^[54] and the 7th COMMUNIA Workshop in Luxembourg.^[55] A inner integration between public domain projects at the European level and the international level is a goal sought by the COMMUNIA policy recommendations.

As part of the institutional efforts to nourish and protect the public domain, there is now also a proposed statutory example placing public domain and intellectual property protection on an equal playing field. ^[56] An innovative Brazilian copyright reform proposal is endorsing the principle that anyone who obstructs the use of works that has fallen in the public domain is to be subject to appropriate sanctions.^[57] The same penalties will apply to whom hinders or prevents fair or privileged uses of copyrighted works.^[58] The Brazilian proposal is the first eminent illustration of endorsement of a politics of creativity inspired by cultural environmentalist principles.

In addition, developments in commons theory have been coupled by efforts to turn theory into practice. As a way of example, Creative Commons and the free and open-source software movement have created a commons through private agreement and technological implementation.^[59] Again, private firms in the biotechnological and software field have decided to forgo property rights to reduce transaction costs.^[60] The key assumption is that injecting information in the public domain will preempt property rights of competitors and thus correct in part the market failure caused by the phenomenon of the “anti-commons”.^[61] In an anti-commons situation many rightholders own numerous exclusive rights over a single resource that, as a consequence, may go underused. This behaviour of the private sector has been interpreted as a self-correcting feature of the intellectual property system that can re-invigorate the public domain without government intervention.^[62] These phenomena of de-propertization can be also seen as responses to the inefficient expansion of intellectual property rights.^[63] The issue of voluntary sharing, private ordering and contractually constructed commons was widely investigated at the 1st COMMUNIA Conference in Louvain-la-Neuve^[64] and the 2nd COMMUNIA Conference in Turin.^[65]

The focus of cultural environmentalism has been magnified on online commons and the Internet as the “über-commons – the grand infrastructure that has enabled an unprecedented new era of sharing and collective action.”^[66] In the last decade, we have witnessed the emergence of a “single intellectual movement, centered on the importance of the commons to information production and creativity generally, and to the digitally networked environment in particular.”^[67] According to David Bollier, the commoners have emerged as a political movement committed to freedom and innovation.^[68] The “commonist” movement created a new order that is embodied in countless collaborative online endeavors.

The 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 Professor Stefano Rodotà, one of the distinguished members of the COMMUNIA Advisory Committee.^[69] As with the natural environment, the public domain and the cultural commons that it embodies must enjoy a sustainable development. As with our natural environment, the need to promote a “balanced and sustainable development” of our cultural environment is a fundamental right that is rooted in the Charter of Fundamental Rights of the European Union.^[70] As we will detail later, 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.

The European Public Domain Project and Manifestos

COMMUNIA 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 organizations that have been developing a new perspective on the importance of the public domain for Europe and the international arena at large. As we will further detail later, this is an essential precondition to solve the typical collective action problem raised by copyright policy, which 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.

Several COMMUNIA members have embodied these values in the Public Domain Manifesto produced within the context of COMMUNIA. 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 Public Domain 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. [ . . . ].^[71] 

Together 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. [ . . . ].^[72]

Further, 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 recognized 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. [ . . . ].^[73]

In 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.^[74] The many relations between the Public Domain Manifesto and the Europeana Charter were discussed at the 7th COMMUNIA Workshop in Luxembourg.^[75] 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.”^[76] Again, the 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.”^[77]

Triggered 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 European Union launched the Europeana digital library network, www.europeana.eu, to digitize Europe’s cultural and scientific heritage.^[78] The LAPSI project, www.lapsi-project.eu, was started to build a network covering policy discussions and strategic action on all legal issues related to access and the re-use of Public Sector Information (PSI) in the digital environment.^[79] 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.^[80] The project, together with its methodology, was presented at the 1st COMMUNIA Conference in Louvain-la-Neuve in 2008.^[81] 

Again, many other projects focus on extracting value form our scientific and cultural riches in the digital environment. The European DRIVER project, http://www.driver-repository.eu, presented at the 1st COMMUNIA Conference and the 1st COMMUNIA Workshop,^[82] is aimed at building a repository infrastructure combined with a search portal of all the openly available European scientific communications.^[83] The project ARROW (Accessible Registries of Rights Information and Orphan Works), http://www.arrow-net.eu, encompassing national libraries, publishers, writers’ organisations and collective management organisations, aspires to find ways to identify rightholders and rights, clear the status of a work, or possibly acknowledge the public domain status of a work.  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.

With the support of the Open Knowledge Foundation, the UK government announced the launch of data.gov.uk, www.data.gov.uk, a collection of more than 2,500 UK government databases - now freely available to the public for consultation and re-use. The Open Knowledge Foundation launched the Public Domain Calculators project as part of the Public Domain Works project, www.publicdomainworks.net, an open registry of artistic works that are in the public domain.^[84] The Public Domain Calculators project, presented at the 3rd COMMUNIA Workshop, Marking the Public Domain: Relinquishment & Certification, in Amsterdam, is aimed at creating an algorithm to determine whether a certain work is in the public domain given certain details, such as date of publication, date of death of author, etc.^[85] As discussed in a meeting held in November 2009 within the COMMUNIA project, the Open Knowledge Foundation has produced a short video covering documentation and strategies for building a set of Public Domain Calculators for countries across Europe.

[INSERT THE VIDEO, http://vimeo.com/15678944]

The activities and goals of the Open Knowledge Foundation, a very active COMMUNIA member, were presented at the 1st COMMUNIA Workshop.^[86]

Many 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.^[87] The European Association for Public Domain, www.europeanpublicdomain.eu, was recently initiated as a project to promote and defend the public domain.^[88] 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.^[89] 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.

[INSERT EUROPEAN PUBLIC DOMAIN PROJECT CHART (Fig. 1)]

This 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, in particular our digital cultural environment. As we will detail in the remaining of this paper, the commodification of information, the enclosure of the public domain, and the converse expansion of intellectual property rights tell a story of unsustainable unbalance in shaping the informational policy of the digital society. An unsustainable cultural development neglectful of the public domain, if not redressed, will negatively affect society at large though the loss of economic and social value that may be extracted from the public domain, especially the digital public domain.