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.

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The public domain is a valuable global asset. A forward looking approach to the use of the public domain would allow the extraction of considerable economic and social value from it.  In particular, COMMUNIA asserts that open and public domain approaches can produce economic and social value. Unfortunately, so far this value has been left unattended. In addition, the intellectual property rhetoric has hidden the public costs of extreme propertization of the public. The current paradigm “binds us to a narrow and erroneous viewpoint, in which innovation is central but access is peripheral,” Rufus Pollock has noted.^[90]

This 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.  

The next portion this Report is intended to map the value of the public domain. To that end, the Report will briefly discuss sources, size, social and economic value, role, and uses of the public domain in Europe.

As mentioned earlier, to assess the value of the public domain the European Commission has launched a tailor-made project, the Economic and Social Impact of the Public Domain in the Information Society project. The findings of that project shall be of avail in the following analysis. The project, together with its methodology, was presented at the 1st COMMUNIA Conference in Louvain-la-Neuve in 2008^[91] and the 7th COMMUNIA Workshop in Luxembourg.^[92] The Public Domain in Europe project pursues the following main goals: estimating the number of works in the public domain in the EU; estimating the economic value of works in the public domain for the next 10-20 years; determining any change in value of works under copyright and once in the public domain; analyzing the current practices for re-use of public domain material held by European cultural institutions; reviewing current available mechanisms for voluntary sharing and assessing their efficiency and impact.  

The Sources of the Public Domain

Before delving into the assessment of the value of the public domain, we should start by identifying its sources. A first set of sources of the public domain belongs in what can be termed the structural public domain or the “constitutionally core elements of the public domain.”^[93] As part of this core elements, an immediate source of the public domain is represented by those works not deserving of protection because, to use the words of the Public Domain Manifesto,

they fail the test of originality, or are excluded from protection (such as data, facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which they are described, explained, illustrated, or embodied in a work, as well as laws and judicial and administrative decisions).^[94]

This category partially overlaps with what authors have called “those aspects of copyrighted works that copyright does not protect.”^[95] These aspects may be termed as the ontological public domain and are defined by the application of the idea-expression dichotomy, the criteria for protection, either the requirement of originality or substantial investment, and the exhaustion doctrine.^[96] The identification of the ontological public domain is left to a dissection test separating protectable from non-protectable elements of a work. The application of this test is often a complex case by case analysis, and, thus, inherently unpredictable. In this unpredictability rests the inevitable indeterminacy of the public domain. COMMUNIA calls for a partial solution to this unpredictability through its policy Recommendation # 4.

Expiration of copyright is a second relevant source of the public domain. Differently than the previous, this category is inherently predictable. Once the temporary right granted to authors is expired, the author’s works enter the public domain. Nonetheless, the incredible complexity of copyright term rules makes it very difficult to determine the copyright status of individual works. This means that one of the biggest obstacles to positively identifying public domain works lies in the cumbersome process of determining the term of copyright protection. To this end promoting the development of efficient public domain calculators will help to counter this further source of indeterminacy of the public domain and thus help to unlock cultural, educational and economic potential of public domain works. Nevertheless, the development of public domain calculator cannot be by any means a general remedy. The complexity of the legal framework, therefore, calls also for a simplification of the rules of copyright term calculation, as COMMUNIA recommends by means of its policy Recommendation # 4.

Depending on special rules of exclusion from copyright protection of official acts within each jurisdiction,  public data and official information produced and voluntarily made available by governments or international organizations may be a further source of the public domain.^[97] For example, the U.S. law precludes copyright protection for laws and other governmental works.^[98] In Europe, though much governmental information and data produced by public authorities might still be copyrighted, the public availability of governmental information and data has been broaden by many ongoing efforts. Most prominently, the Directive 2003/98/EC is intended to encourage the reuse and the commercial exploitation of public sector information.^[99] Practical implementation and further efforts toward openness are still sought at the national level, though, as also recommended by COMMUNIA policy Recommendation # 13.

There is, then, other material whose nature as a source of the public domain is more contested.^[100] As the Public Domain Manifesto puts it, next to the structural public domain would lie a functional public domain. Structural and functional public domain sources would be distinguished by the circumstance that “in the first case, the openness and freedom of use is premised on the non-[in]existence of copyright, in the second case on the impossibility to exercise and enforce copyright exclusivity.”^[101] As per the Public Domain Manifesto, the functional public domain represents “the “breathing space” of our current culture and knowledge” that it is made of “sources that enable individuals to freely interact with copyright protected works.”^[102] The Public Domain Manifesto identify the sources of the functional public domain as the “works that are voluntarily shared by their rights holders” and “the users prerogatives created by exceptions and limitations to copyright, fair use and fair dealing.”^[103]

Therefore, firstly, contiguous to the structural public domain is a set of privileged uses under copyright exceptions and limitations, fair use, and fair dealing. Public domain and copyright exceptions and limitations, in fact, share the public interest of enhancing access to culture and creativity.^[104] In general, copyright exceptions and fair uses are deemed to be only functionally equivalent to public domain material. Nonetheless, a more extreme approach would locate within the public domain any use for which permission is not required.^[105]

Secondly, it is debated whether, and to what extent, content distributed under open access models, such as open source software, free software, and creative commons material, can be located within the public domain. Generally, open source software and CC-licensed content  are included in a territory adjacent to the public domain.^[106] The nature in between copyright all rights reserved and public domain no right reserved is due to the intellectual property rights acting as the very source of authority for the license terms under which this content is freely and openly distributed. However, as noted earlier, open source software, free software, and creative commons content belong to the category of contractually constructed commons and thus share much of the value of public domain content.^[107]

As a final note, it is to be observed that the sources of the public domain may vary from jurisdiction to jurisdiction and shift overtime. By way of example, original design of useful articles and unoriginal compilation of facts will be feeding the public domain in the United States but not in Europe. Conversely, business methods and certain biotechnology innovation will serve as a source of the public domain in Europe but not in the United States. This may be an issue when attempting to map the public domain. Drafting national public domain maps for comparative analysis should minimize this difficulty, though.^[108]

The Size of the Public Domain

In order to determine the overall value of the public domain, the first step to undertake is to assess its size. So far only one quantitative study on the size of the public domain is available in Europe. The study was developed within the Public Domain in Europe project by Rufus Pollock, Paul Stepan and Mikko Valimaki. The study was presented by Rufus Pollock at the 7th COMMUNIA Workshop in Luxembourg.^[109] The study attempts to estimate the number of items in the public domain across a variety of European countries and different media types. The study focuses only on that part of the structural public domain that is composed by works whose copyright is expired. The results of the study show that

the public domain for books alone consists of hundred[s] of thousands, and sometimes millions, of items, and that, taken as a whole, the European Public Domain must be measured in the millions, or even tens of millions. While a brief perusal of the relevant datasets indicates that much of this material may have only slight value today, nevertheless the scale and diversity of this vast public domain is indicative of significant value, cultural, social and commercial. ^[110]

In addition, the study reports a public domain for sound recordings that consists at least of tens of thousands of items. As per films, the study concludes that, since movies are an invention of the nineteenth century, “it is therefore likely that very little film is in the public domain.”^[111] 

Needless to say, this study is only an initial partial quantitative assessment of the European public domain. Further studies are awaited to come up with more complete and precise data, in particular in the sound recording sector. In addition, any such study should be coupled with the assessment of the remaining part of the structural public domain and the amount of works that are voluntarily shared or dedicated to the public domain.

A quantitative research on a related issue has been carried out in the United States. ^[112] Paul David and Jared Rubin examined the impact of US copyright expansion on reducing the size of the public domain. They have tried to quantify the extent of the incursions into the public domain in books that have resulted from legal extensions of U.S. copyright law during the 20th century. David and Rubin made estimates of lower and efficient upper bounds for each of the several statutory changes, measured in terms of the number of copyrighted works that unambiguously will have been returned to the public domain in every year, going forward into the 2020's. The study found that “by 2027, changes in copyright laws over the last half-century will have prevented over 3.5 million books that would otherwise have entered the public domain from doing so.”^[113]

The Social and Economic Value of the Public Domain

The value of the public domain is a complex variable made up of many components. The public domain 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, the market efficiency triggered by a healthy public domain or, again, the democratic function of the public domain. In any event, social and economic value is always very much tangled up in the assessment of the riches of the public domain.

As per the value of a work entering into the public domain or public domain effect, we refer to the concept as described by Rufus Pollock within the framework of the Economic and Social Impact of the Public Domain in the Information Society project. ^[114] Firstly, the revenue value is to be distinguished from the social value of the public domain, as the economic utility generated for society. An example may help to differentiate the two concepts. Let us say that after a work enters in the public domain, that work is sold for €5 instead of €10, or may even be downloaded for free online. The social value of the work entering in the public domain, or the “consumer surplus,” will be €5 or €10, if the work is freely accessible. Conversely, if we only looked at the revenue value, we should conclude that the value of the work dropped from €10 to €5 or zero.  

In addition, the social value of a work entering in the public domain will also include the deadweight loss of restricting access to a good that it is spared to society. With the term deadweight loss, economic analysis refers to the loss for society consequent to that portion of population that cannot afford to buy the good at a monopolistic price. For that portion of population, society gains the entire value that each consumer puts upon the work. As an example of the value that may be lost due to enclosure of the public domain, recent studies have shown data that suggest that, as to fictional books, copyright extension imposes deadweight losses without any offsetting efficiency gain.^[115] The data show that in-print status and in store availability of public domain books are higher or equal to copyrighted books. Instead, the titles in the public domain are significantly less expensive than their copyrighted counterparts.

Finally, the assessment of the value of a work entering in the public domain must also take into account the value of reuse. In the case of monopolies on intellectual productions, innovators and creators will be prevented from developing derivative works or invention from the original. 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 reuse. Differently than the social value mentioned earlier, the value of reuse is a dynamic value that boosts society both economically and culturally.

Together with the value that may be immediately extracted from the entrance of a work into the public domain, the public domain or a public domain approach to knowledge management may be a source of value on many different levels. Before delving into a more specific account of the social and economic value that can be extracted from the public domain, we note that, in general terms, public domain literature has identified eight values of public domain information and works:

1. 1. building blocks for the creation of new knowledge, examples include data, facts, ideas, theories and scientific principle;
2. 2. enabling competitive imitation, through for example expired patents and copyright, or publicly disclosed technologies that do not qualify for patient protection;
3. 3. enabling follow-on innovation through expired patents and copyrights and leaked trade secrets;
4. 4. enabling low cost access to information without the need to locate the owner or negotiate rights clearance and pay royalties, through for example expired copyrighted works or patents, and non-original data compilation;
5. 5. access to cultural heritage through information resources such as ancient Greek texts and Mozart’s symphonies;
6. 6. promoting education, through the spread of information, ideas and scientific principles;
7. 7. promoting public health and safety, through information and scientific principles;
8. 8. promoting the democratic process and values, through news, laws, regulation and judicial opinion.^[116] 

When it comes to value the mentioned benefits of the public domain, however, a quantitative measurement is impossible, at least with the present data and modeling tools.^[117] Nonetheless, some quantitative conclusions on the value of the public domain can be inferred by examining few examples of public domain approaches to knowledge production. In general, these examples show the role and the value of the digital public domain in allowing new business models to emerge.

In the case of file sharing, for example, few studies have found significant benefits of free access.  One U.S. study has found that public domain type access to music would entail a net gain for society of US$ 45 per person.^[118] In addition, seminal studies have found that the impact of peer to peer file sharing on sales does not seem that relevant.^[119] 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.^[120] 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.

The value of few other examples of public domain models, as singled out by Rufus Pollock’s study, can be more immediately appreciated.^[121] Open source software is a quintessential example of the value of an open approach 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. Oddly enough a strict enforcement of copyright law would bring to a halt the web as it is known today.

Finally, several studies have highlighted that a public domain approach to weather, geographical data, and public sector information in general, may yield a substantial long-run value for Europe, running into the tens of billions or hundreds of billions of euros.^[122] The benefit of access to and re-use of public sector information has been widely investigated during the COMMUNIA proceedings among others by Professor Paul Uhlir, distinguished member of the COMMUNIA Advisory Committee.^[123] In particular, the 5th COMMUNIA Workshop, co-organized by the Open Knowledge Foundation and the London School of Economics, focused on Accessing, Using and Reusing Public Sector Content and Data.

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. A recent, and so far isolated, study compiled data from 2002 to 2006 to show the contributions to the U.S. economy of companies benefitting from fair use and copyright exceptions.^[124] 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 have found that “the fair use economy in 2006 accounted for $4.5 trillion in revenues and $2.2 trillion in value added, roughly one-sixth of total U.S. GDP.  It employed more than 17 million people and supported a payroll of $1.2 trillion. It generated $194 billion in exports and rapid productivity growth.”^[125] The study showed that industries based on or benefitting from fair use exceeded GDP, employment, productivity, and export growth of the overall economy. Further, the study 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 make a very relevant finding: in the digital environment, open and public domain business models may spur growth at a faster pace than proprietary traditional business models. In addition, the study shows as many of the industry compartments that may be included in the category of copyright-based industry^[126] are in fact benefitting from privileged and fair uses of protected materials as well. Those benefits may be, in fact, a more relevant contribution to our economic growth than the benefits coming from the exploitation of proprietary business models, as the study points out. These findings, therefore, should play a central role in directing the European policy strategies.

Promoting fair use and the functional public domain, thus related fair use industry, may have also a considerable added value for Europe.  When contrasted with the United States 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 United States. Fair use has been declined by the United States Court of Appeals of the 2nd Circuit as “the most troublesome doctrine in the whole of copyright.”^[127] As a consequence of the inherent unpredictability of fair use in the United States, transaction costs will be higher, legal positions will be uncertain, and commercial endeavours will be chronically open to legal challenge. Europe should maximize the advantages that our legal framework offers 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. If compared with the United States market, the European Internal Market may become an heaven for fair use industries. However, to that end, Europe needs to advance harmonization 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 COMMUNIA policy recommendation # 3.

Further, 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

[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.^[128]

Restricting access to information would increase the inefficiency of the market because perfect information makes the perfect market.^[129] A market that commodifies information excessively will be less efficient in allocating resources in our society since key information to facilitate that allocation will be more difficult to find. In addition, by raising the costs of information, we will undermine creativity since the building blocks of future creations will be inaccessible to a portion of our society.^[130] 

Finally, as we will discuss in greater detail later, the public domain is an engine of democratization by ensuring a 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 of 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.

The Public Domain Effect in Action

Practice is often more explanatory than theory. A few examples may help to grasp the value of the “public domain effect,” the entrance of a work in the public domain, and other social and economic value 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 of Freud in the first 9 months of 2010 by 10 publishers. This is an astonishing figure if compared with the previous years. In the preceding 10 years, from 1999 to 2009, only 16 works of Freud were published in Italy.^[131] In the Czech Republic, works by Karel Čapek reached 39 new editions when the author entered the public domain in 2009. Previously, the corresponding number was between 4 and 10 new editions per year.^[132] In the examples given, in fact, decreasing marginal costs of production should be taken into consideration to assess the overall net value for society. However, the capacity of the public domain effect to propel revived interest in works of authorship may outweigh any other considerations. It is worth noting that one of the effects of works falling into the public domain may be to stimulate critical editions as a way to package unprotectable underlying works in a protectable form.^[133] 

2007 saw the 70th anniversary from the death of Louis Vierne, a renowned French organist and composer, and the end of the copyright protection of his works. Upon expiration of Vierne’s copyright, two German publishers issued new editions of Vierne's opera omnia. These new editions finally corrected many mistakes and inaccuracies included in the original scores. Louis Vierne was born nearly blind due to congenital cataracts, and such mistakes were likely due to Vierne's hesitating writing. Up to the expiration Vierne’s copyright, none of its publishers tried to correct the mistakes, because the copyright laws prevented them from editing the original works whatsoever. Only the full release in the public domain enabled a new publisher, Bärenreiter, to finally provide anybody in the world with a correct, elegant and appropriate collection of such great compositions.^[134]

Again, an anecdote about the effect of a work suddenly falling into the public domain is enlightening to grasp the value of the public domain. The film “It’s a Wonderful Life,” directed by Frank Capra and starring Jimmy Stewart, 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 TV station discovered that the movie was freely available and ran it during Christmas, because its climax comes on Christmas Eve. Within a few years “It’s a Wonderful Life” was being shown on televisions stations across the United States at Christmas. The success was terrific. Watching the movie at Christmas time became a cultural tradition in the United States, and references to the movie became commonplace as well.^[135]

Finally, a passage in English cultural history may further express the value of the public domain, as persuasively argued by William St. Clair.^[136] The persistent and strong impact of the poets and novelists of the English Romantic period upon the reading public of the Victorian age, may be the consequence of the conjunctures of events affecting the economics of the printing and publishing business in Britain. In particular, that strong impact may be the result of the public domain effect on the works of the English Romantic authors. The works of English Romantic poets and novelists – Scott, Byron, Coleridge, Keats, Shelley, Campbell, Southey, and Wordsworth – appeared during the transient interval of short copyright protection granted under the judicial implementation of the statutory copyright prescribed by the Statue of Anne. That interval spanned from 1774 to 1841. Meanwhile, the application of stereotype printing technology propelled mass reprinting of inexpensive titles that could be kept "in print" for an unprecedented length of time. After 1841, the span of copyright protection in Britain was lengthened to two and then to three generations. As a result, the English Romantic literature prevailed as a canon in the Victorian age (1837-1901) after emerging from copyright to reach a greatly enlarged public in innumerable cheap editions within only a generation of their having been written. The literature published after 1841 did not reach the same enlarged audience within such a short term, therefore giving way to the endurance of the Romantic literature among the public.

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Digitization and the Internet revolution are an unprecedented opportunity for fostering progress, culture, and knowledge. For 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 5th COMMUNIA Workshop and the 3rd COMMUNIA Conference, notes:

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.^[137]

The Internet and digitization have produced a great value shift that is reversing what was termed by the economist Karl Polanyi as the “Great Transformation” – the 19th century rise of the Market Society when market activity took a life of its own and overpowered the other social institutions.^[138] 

In online interaction there is a growing recognition that value can be created by social practices that cannot be explained by standard market economic focus on quantification. The uncompensated users’ contributions in developing free software, or updating Wikipedia, Facebook and YouTube are reversing the logics of the market society. Gift economy is emerging as a new practice of value exchange. Consumer or user gift systems are emerging next to traditional market systems in many sectors of cultural production and creativity exchange.^[139] The ring is not right;

Digital 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. The high generative capacity of online commons has been described as the wealth of networks.^[140] The wealth of networks lies in social and networked peer production that is highly generative, because it is modular, granular, and inexpensive to integrate the results.^[141] As Professor Yochai Benkler puts it, the

networked environment makes possible a new modality of organizing production: radically decentralized, collaborative, and nonproprietary; based on sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other without relying on either market signals or managerial commands. This is what I call ‘commons-based peer production.’^[142]

Technology has made possible large scale cooperative behaviour and gift exchange that was before limited to rarified groups.^[143] Initially, the large scale cooperative behaviour emerged and evolved in software communities^[144] and the academia.^[145] At the 1st COMMUNIA Workshop, Rishab Aiyer Ghosh explored the need to protect and foster an 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.”^[146]

A great deal of attention has been paid by COMMUNIA to sharing and networked peer collaboration in education and research, especially at the 2nd COMMUNIA Conference, Global Science and the Economics of Knowledge Sharing Institutions, in Turin and the 8th COMMUNIA Workshop, Education of the Public Domain: The Emergence of a Shared Educational Commons, in Istanbul. In particular, at the 2nd COMMUNIA Conference in Turin, Professor Jerome H. Reichman, a distinguished 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.^[147] At the same COMMUNIA Conference, Professor Paul Uhlir proposed a model of open knowledge environments (OKEs) for digitally networked scientific communication.^[148] 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.”

However, 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. User-generated creativity plays a central role in the digital cultural environment.^[149] Individual experimentation, sub-cultures, and a community of social trust have created Linux, Wikipedia, Facebook, YouTube, and major political websites. Flexibility, decentralization, cooperative creation, and customization out-performed corporate bureaucracies unwilling to experiment, because it was too risky and costly. David Bollier have described this process as a “viral spiral” by which Internet users come together to build digital tools and share content on self-created online commons.^[150] 

Moreover, new models of decentralized and cooperative creation incessantly out-perform theirself, as it is the case for open alternatives to Facebook. Faced with Facebook’s centralized nature and untrammeled desire to control online identities by trampling on privacy norms, the online community has been responding with the emergence of many projects and experiments to redress the deficiencies of the Facebook model. In particular, a group of four New York University students has launched an open, distributed social networking system called Diaspora.^[151] The specificity of the Diaspora project resides also in crowdsourced founding that was largely raised out of the dissatisfaction for the centralized social networking models. Crowdsourcing is an increasingly popular tool to raise money online. On Kickstarter and the like platforms,^[152] people can pledge for an economic goal set up in advance by the project developer. The quite amazing result of the Diaspora project is that, as a response to a campaign for collecting $10,000, the backers pledged over $200,000!^[153]

The MusOpen project provides an additional good example of the potential of public 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, after being fairly dormant for a few years, the project crowdfunded $70,000 through a KickStarter campaign. Aided by KickStarter, Musopen reached an audience passionate about freeing culture and public domain works.

The 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.”^[154] Remix and mash up are now keywords of the cultural process taking place in the digital environment.^[155] Remix culture has emphasized 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,”^[156] has become “a fertile paradise . . . a commons.”^[157] 

The revolution brought by the web 2.0 and the fertile paradise that the public domain has become call for a copyright 2.0, as noted by Professor Ricolfi at the 1st COMMUNIA Conference.^[158] This call is urged, as Professor Ricolfi puts it, by the fact that technology has radically transformed creation by attaching to it a new social emphasis. The long route that took works from the creators to the public by passing through a large number of intermediaries has been gradually replaced by a short route. This short route empowers a direct and unrestraint discourse between the authors and the public. ^[159] 

Copyright 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. The notion and the features of copyright 2.0, as described by Professor Ricolfi, are endorsed by COMMUNIA as one its main policy recommendations.

Together with the cultural revolution of networked peer production, the nature of digital information and digitization may also extraordinarily enrich the public domain. Digital information are cheap 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,^[160] Project Gutenberg, Google Books, the Online Books Page,^[161] the Hathi Trust Digital Library;^[162] digital repositories; scientific libraries of reusable code; databases of scientific and technical information; vast non-profit digital archive of the Internet, such as the Internet Archive;  electronic journals; and MP3 files of music posted by bands wanting to attract a new audience.

Again, digital tools are changing research in science and scholarship in history, literature and the arts.^[163] Our understanding of science and the liberal arts is changing by using high performance computers and vast stores of digitized materials. 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 analyzing unprecedented amounts of data. Few months ago, Google has made a gigantic database from nearly 5.2 million digitized books available to the public for free downloads and online searches.^[164] A simple online tools will allow anybody to browse cultural trends throughout history of digitized literature by inserting a string of up to five words and see a graph that charts the phrase’s use over time. A recent study has already investigated the vast array of research opportunities now open to literature, history and other liberal arts by the Google project. The research team drafting the study have termed the new field of study as “culturomics” which should extend “the boundaries of rigorous quantitative inquiry to a wide array of new phenomena spanning the social sciences and the humanities.”^[165] We may take a peek at the new opportunities of enhanced understanding brought by “culturomics” by looking at a graph generated by the Google Ngram Viewer reporting the use of the phrases “copyright” and “public domain” in the last two centuries. Enlightening, isn’t it?

Fig. 1

The Google database is the most relevant example of many other research projects set to demonstrate how vast digital databases can transform our understanding of language, culture and the flow of ideas. Researches at Stanford and Oxford Universities are charting the flow of ideas during the Enlightenment by using a geographic information system to trace the letters’ journeys.^[166] Other projects are digitally mapping battlefields to see the role that topography played in victory, researching through a large libraries of books and text to see how ideas first appeared and spread. Again, researchers are digitally combining charts, documents and other information on travels of historical figures to come up with reveling patterns, using databases of thousands of jam sessions to track how musical collaborations influenced jazz, or digitizing the depiction of the Battle of Hastings in the Bayeux Tapestry, a 68 meter long embroidery, to propel artistic and historical research. Several projects attempt to push digital humanities in a more co-ordinated direction. In Europe, the Digital Research Infrastructure for the Arts and Humanities (DARIAH) aims to enhance and support digitally-enabled research across the humanities and arts.^[167] Institutions in Britain, United States and Canada teamed up to create the create the Digging Into Data Challenge, a grant program designed to push research in the field of digital humanities.^[168] 

The digital environment has the potential to make knowledge a truly global public good. As Charles Nesson reminded us, the “challenge is how to use this environment to create knowledge.”^[169] 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. This is a daunting enterprise. It is daunting because

. . .our intelligence tends to produce technological and social change at a rate faster than our institutions and emotions can cope with . . . we therefore find ourselves continually trying to accommodate new realities within inappropriate existing institutions, and trying to think about those new realities in traditional but sometimes dangerously irrelevant terms . . . .^[170]

However, if we manage to extract full public value from the public domain with the help of technological advancement, our culture and society may flourish as never before. COMMUNIA maintains that Europe should not be afraid of changing and flourishing. COMMUNIA believes that policy strategies implementing openness in information management are the key to any change that may fully exploit technological advancement. Any actions toward the enclosure of the public domain should be reversed. Outmoded intellectual property models should be re-invented. Professor Ricolfi reminded us at the 1st COMMUNIA Conference that the time to take up this challenge has come, regardless of how daunting the task be.

Of course, to go this way, one would have to change hundreds of laws and a few international conventions. I do not know that this is an impossibility. I am among those who, at the beginning of the digital age, insisted that it was too early to legislate. In my opinion, however, the time has now come. It is for you to decide whether this is an impossibility, a dream or, may be, a vision. What I know is that the present time – and the present place – are the best to discuss this.^[171] 

The interaction between a cultural production and distribution mode based, on one side, on market decisions and, on the other side, on decentralized non-market decisions of social sharing calls for a recalibration of the policy agenda for the digital environment.

First, the agenda should incorporate rules which are appropriate not only for the long route but also for the short route. Second, it should allow for the “peaceful coexistence” of the two sets of rules, making them interoperable, in such a way that the continued existence and specific contribution of the two sectors is maximized. Third, obstacles inherited by the past which unduly inhibit the emergence of the short route should be gradually phased out in ways which should minimize the disruption of the workings of the old route.^[172]

This vision is shared by many worldwide. At the WIPO Global Meeting on Emerging Copyright Licensing Modalities – Facilitating Access to Culture in the Digital Age, scholars have called overhaul of the copyright system which will "never work on the internet." In proposing a roadmap for copyright reform, Professor Lessig urged WIPO to form a “blue sky commission […] that has the freedom to think about what architecture for copyright makes sense.” This architecture must be simple and targeted – regulation makes sense in some areas, such as protecting professionals, but not in others, such as in amateur remixing.^[173] Professor Lessig’s call for change has not gone unheard. Recently, Francis Gurry, Director General of the World Intellectual Property Organization, has powerfully reinforced the very same idea by noting that there is “no other choice – either the copyright system adapts to [digitization] or it will perish.”^[174] As Francis Gurry additionally opined, that adaptation should not be “determined by a Darwinian process of the survival of the fittest business model,” but it “should, rather, be established through a conscious policy response.”

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 remaining part of this portion of the Report will introduce and discuss the most relevant of those challenges and tensions. Later on, Annex III of this Report will lay down the principles that COMMUNIA understands should inspire policy strategies to overcome the challenges, redress the present tensions, and promote the digital public domain.

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Challenges and Bottlenecks

As anticipated, there 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. This tension is unavoidable and originates from the dual functionality of knowledge as a commodity and as a driving social force.^[175] At the 2nd COMMUNIA Conference, Professor Hugenholz referred to this tension as the “paradox of intellectual property” because intellectual property is a “system that promotes, or at least, aspire to promote knowledge, dissemination, cultural dissemination by restricting it,” by creating temporary monopolies in expressed ideas or in applied invention.^[176]

However, digitization and Internet distribution have exacerbated this tension. The misperception of the “Internet threat” has led to a reaction that endangers the public domain.^[177] Concurrently, the opportunities that digitization and Internet distribution offer to our society make enclosure and commodification of our information environment even more troublesome. As Professor Paul A. David, key note speaker at the 1st XXX Conference, noted:

Today, 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.^[178]

Commodification and Enclosure of Culture

With large agreement, scholars and the civil society have warned that “we are in the midst of an enclosure movement in our information environment.”^[179] Professor Boyle has talked about a second enclosure movement that it is now enclosing the “commons of the mind.”^[180] As for the natural commons, fields, grazing lands, forests, and streams that were enclosed in the XVI 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.”^[181] As in the case of medieval feudalism, there is a redistribution of property rights that involves this time a transfer of knowledge from the intellectual commons to media conglomerates and integrated life science corporations.

The expansion of property rights over information is a consequence of the transformation on the meaning of market power operated by the “information economy.” Economic power is increasingly defined in term of control over the production and distribution of information. Therefore, gaining control over the production and distribution of information has become the natural focus of competition in the marketplace for content. The capacity of copyright laws to provide exclusive rights that restricts potentially competitive behaviour is essential to the new mechanics of market power. In addition, the decentralized nature of the Internet has increased the significance of control over the content via copyright law and has augmented the pressure on the legal system to produce new means of market control.^[182]

Enclosure is promoted by a mix of technology and legislation. According to Bernt Hugenholtz and Lucie Guibault, the public domain is under pressure from the "commodification of information."^[183] 

[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.^[184] 

Commodification of information is propelled by the ability of new technologies to capture resources previously unowned and unprotected, as in a new digital land grab.^[185] Professor Elinor Ostrom and her colleague Charlotte Hesse have argued that

[i]nformation that used to be “free” is now increasingly being privatized, monitored, encrypted, and restricted.  The enclosure is caused by the conflicts and contradictions between intellectual property laws and the expanded capacities of new technologies. It leads to speculation that the records of scholarly communication, the foundations of an informed, democratic society, may be at risk.^[186]

However, this digital land grab is the continuation of a well-settled analog trend whose limits and fallacies have already been shown and rebutted. Mark Rose notes how the public domain discourse was comparatively weak against the rhetoric of property, as the law is mostly about property or, as the adage has it, possession is nine-tenths of the law.^[187] In the past, law and economics scholars have launched a crusade to expose the evil of the commons,^[188] the evil of not propertizing.^[189] Since Harold Demsetz, economists have viewed property rights as a desirable tool to internalize the full social value of people’s actions and therefore maximize the incentive to engage in those actions.^[190]

A much-quoted article written by Garret Hardin in 1968 termed the evil of not propertizing as the tragedy of the commons.^[191] The subject of Hardin's essay was the carrying capacity of the commons and its limits. Hardin identified the tragedy of the commons in the environmental dysfunctions of overuse and underinvestment found in the absence of a private property regime. Hardin made it clear that any commons open to all, ungoverned by custom or law, will eventually collapse.  Though strongly criticized and rebutted, this analysis shaped the debate to come. As Professor Boyle noted, “any discussion of intellectual property or the public domain proceeds in the shadow of the ‘the tragedy of the commons.’”^[192] 

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. In this perspective, the prevailing assumption is that anything of value within the public domain should be commodified. This “cultural stewardship model”, as Julie Cohen has termed it,^[193] regarded ownership as the prerequisite of productive management, assumed that any commons is inefficient, and promoted the idea that opposing the expansion of intellectual property is a mistake in economic terms.^[194]

As Paul Goldstein puts it, “the best prescription for connecting authors to their audiences is to extend rights into every corner where consumers derive value from literary and artistic works. If history is any measure, the results should be to promote political as well as cultural diversity, ensuring a plenitude of voices, all with the chance to be heard.”^[195] The recent tremendous expansion of intellectual property rights has been justified by this statement and the like. Put it bluntly, this statement and the like are wrong. No economic theory of intellectual property and commons management supports the prediction stated.^[196]

Nobel laureate Elinor Ostrom powerfully advocated the cause of the commons against the mantra of propertization. Ostrom’s work showed the inaccuracies of Hardin’s ideas and brought attention to the limitations of the tragedy of the commons.^[197] Empirical studies 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.^[198] Under suitable conditions and proper governance, the tragedy of the commons becomes “the comedy of the commons.”^[199] 

Culture is quintessential comedic commons because it gets enriched through reference as more people consume it.^[200] 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 to a song does not subtract from another’s. Therefore, cultural commons unveil the inaccuracy of the tragedy of the commons more than any other commons.

In addition, the comedic nature of the cultural commons that are augmented through use and reference limits the argument that the market will always serve us well.^[201] As traditional economic analysis of property a-la Adam Smith goes, commodification, propertization and enclosure are tools to be employed to aid market forces that are intended to manage efficiently scarce resources. Propertization should facilitate transactions by defining and evaluating assets and thus making them transferable. Nevertheless, traditional market principles may be inefficient when applied to cultural commons that are never by nature scarce. Propertization and enclosure in the cultural domain may be a wasteful option by cutting down social and economic positive externalities,^[202] particularly in peer-based production environments. As technology has facilitated a vast array of cooperative creative projects, community production has been increasingly considered a solution to the free-rider problems of cultural production.^[203] 

Reviewing 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.^[204] This time, it is extreme propertization to be the evil hindering optimal and efficient use of resources. 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.^[205] This is the case, for example, of overpatenting in biomedical research.^[206] Professor Paul David exposed the perverse resource allocation in an anti-commons scenario at the 1st COMMUNIA Conference.^[207] The notion of a tragedy of the anti-commons, together with the need of reacting to the commodification of culture by cultural conglomerates, has been taken to the extreme consequences by few authors who argued in favour of the abolition of copyright.^[208]

Next to the economic inaccuracy of the tragedy of the commons and related commodification, it is worth mentioning that the idea of extending property “rights into every corner”, may be at odds with the very rationales of copyright law. In this regard, Fiona Macmillan has argued:

It is commonly argued that the process of commodification divorces the author from his or her  work. This, in turn, casts doubt on the validity of the rationales frequently suggested for the existence of copyright. In relation to the natural rights rationale, the suggestion that  copyright is  granted because authors ought to have control over the products of their minds rings a little  hollow given the commodification of and consequent loss of control over those products.  Similarly, the argument that  copyright is granted in order to benefit the  public by stimulating the production of  cultural  works  and thereby  ensuring cultural  development, seems strange when the process of commodification leads to cultural domination and homogenisation.^[209]

In this last regard, copyright commodification will impinge on cultural diversity and freedom of expression by leading to global domination of a market for cultural output.^[210] This tension will be investigated in details later, though. For now, let us only mention that Fiona Macmillan has noted that the “public domain is as much threatened by the concentration in private hands of copyright ownership over cultural products as it would be if such ownership was concentrated in the hands of the State.” ^[211]

Copyright Extension and Orphan Works

By increasing the asset value of copyright interests, copyright term extension is one basic tool of commodification of information and creativity. The XVIII century debate over copyright protection and public interest in accessing culture was followed by two hundred years of progressive expansion of property rights. 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, copyright protection over the public domain.

The timeline of temporal extension of copyright protection shows a steady elongation in all international jurisdictions. An example taken from the first jurisdiction enacting a copyright statue is enlightening of the extent of the copyright term lengthening. The Statute of Anne provided for fourteen years of protection renewable for a term of additional 14 years if the author was still alive at expiration of the first term.^[212] Today, the oldest work still in copyright in the United Kingdom dates back from 1859.^[213] The term of copyright protection in the United States has crept steadily upward over the last several centuries as well, from 14 years with an option to renew for another 14 in 1790, to 28 years with an option to double that in 1909, to life plus first 50 years in 1976 and then plus 70 years in 1998.^[214] At the European level, the Council Directive 93/98/EC has extended the copyright protection of authors from life plus 50 years to life plus 70 years. Today, an extension of the term of protection for performers and sound recordings is under discussion before the European Parliament.^[215] In fact, the extension has been already adopted, but, for procedural reasons under Lisbon, it must be readopted. COMMUNIA is opposing any such re-adoption. COMMUNIA policy Recommendation # 2 asks the European Commission and Parliament to carefully review any previous convincement on the matter and withdraw the newly pending proposal. In particular, COMMUNIA is challenging the appropriateness  of any retroactive extension of the copyright term. As in the case of the Sonny Bono Copyright Term Extension Act in the U.S., the European proposal would give an extra 20 years of life to existing works nearing their copyright expiration. Retroactive copyright extension makes it difficult to put up any logic supporting economic argument, “as what matters for the authors are the incentives present at the time the work is created.”^[216] 

Temporal extension of copyright is a common tendency of most international copyright laws. From the original protection encompassing a couple of decades, copyright protection has expanded to last for over a century and a half. This course does not appear to be interrupted or reversed, and the line between temporary and perpetual protection seems to be 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, powerfully echo 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."^[217] 

COMMUNIA opposes any blanket extension of copyright and neighbouring rights, as detailed in COMMUNIA Policy Recommendation #1 and Recommendation #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. In general, studies show that this proof can hardly be given. The data show a highly competitive and robust market for the production of public domain books, especially when production costs are low.^[218] Public domain books are not under-exploited when compared to copyrighted books, as per probability of being in print, number of editions, and range of price. Instead, the data do not show any off-setting social benefits in the form of increased availability attributable to copyright status. Markets for other products, such as movies, music and software, where technology has made the cost of production extremely low, are likely to behave similarly.^[219] 

Orphan Works

The 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 rightsholders cannot be identified or located and, thus, whose rights cannot be cleared. The orphan works problem is quintessential of the tension between copyright protection and the public domain. In some instances, if all the information is missing, orphan works are ageless and their status, whether public domain or copyrighted, may be ambivalent. Resembling a modern two-headed Janus, “orphan works occupy a grey zone located between a defined realm of copyright protection with all elements requiring to get a proper authorisation to use the work, and the defined realm of the public domain with all elements proving that the work is no longer protected and can be freely used,” as Séverine Dusollier puts it.^[220] Most times, however, the copyrighted status of the work is undisputed and the work is made orphan by the incapacity of identifying or physically locating the right owners that may be different from the original author.

At the EU level, two major consultations were organized to define the actual size of the orphan works problem.^[221] The consultations indicated that the issue is perceived by several audiovisual and cultural institutions as a real and legitimate problem. In any event, neither of these consultations has generated firm quantitative data. According to a recent study published by the European Commission (“Vuopala Study”), a conservative estimate puts the number of orphan books in Europe at 3 million.^[222] The Vuopala Study shows, then, even higher percentage for other categories of works, especially among photographs, and audiovisual works. However, some estimates put the number of orphan woks well over forty per cent of all creative works in existence.^[223] Another recent study has calculated volumes of orphan works in collections across the UK’s public sector well in excess of 50 million.^[224] The Gowers Review of Intellectual Property claims that from the total collection of photographs of 70 institutions in the UK, around 19 million, the percentage of photographs where the author is known, other than for fine art photographs, is 10 per cent.^[225]

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. By way of example, the U.S. Holocaust Museum spoke of the millions of pages of archival documents, photographs, oral histories, and reels of film that cannot be published or digitized because ownership cannot be determined.^[226] Society at large is being precluded from fostering enhanced understanding. Daily, steadily, small missing pieces of information prevent the completion of the puzzle of life.

The Vuopala Study shows cumbersome transaction costs in the right clearance process.^[227] Besides the material costs of clearing rights, the transaction costs of the clearing process are extraordinarily augmented by the resources needed. Absent efficient sources of rights information, the 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 pervasiveness and relevance of the problem cannot be undermined by the European institutions and civic society.

The 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. As a consequence of copyright temporal extension many works that have been out of print for decades may still be under copyright protection. The long out-of-print status of copyrighted work makes more and more difficult to retrieve the necessary data to clear rights in others’ works. In case of highly perishable cultural artifact, such as audio and video recordings, the tragedy for our cultural heritage is even more substantial because old works with great historical value will root away and will be lost forever.^[228]

A study from the Institute for Information Law at Amsterdam University (IViR) attributed the  increased interest in the issue of orphan works in 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 a derivative works; (3) the transferability of copyright and related rights; and (4) the territorial nature of copyright and related rights.^[229] In particular, in Europe the problem gets further tangled up 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. This is a further intricacy burdening the clearance of so called “orphan works” in Europe.

In modern time, term extension, orphan works and digitization project are the three co-ordinates that convey the dimension of the problem.^[230] 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. If the temporal extension of copyright has exacerbated and augmented the dimension of the orphan works problem, only the acquired capacity of digitizing our entire cultural heritage has fully unveiled the immense loss of social value that orphan works may cause. The above mentioned European Commission study strongly supports this conclusion. The study gathered responses from twenty-two institutions involved in the digitization of works. The high number of orphan works together with high transaction costs may represent an overwhelming burden for several digitization projects.  The study concludes that a title by title rights clearance can be prohibitively costly and complex for many institutions.^[231] Hence, a solution to orphan works and a more efficient rights clearing process is needed to propel digitization of cultural artifacts and unlock the humanities’ riches, as proposed by COMMUNIA policy Recommendation # 9.

The perception that a urgent solution to the orphan works problem is very much needed is shared by many European scholars, noting that “[a]s the problem of orphan works becomes more acute and threatens to undermine increasing numbers of digitization projects, it is hoped that national legislatures in Europe and elsewhere [ . . . ] introduce legislative solutions.”^[232] The challenges of digitizing works today were also widely investigated at the 6th COMMUNIA Workshop, Memory Institutions and Public Domain, in Barcelona in October, 2009.

The European institutions are also aware of the potential loss of social and economic value if the orphan works problem remains unsolved. As the Commission noted, “there is a risk that a significant portion of orphan works cannot be incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana or similar projects.”^[233] Digitization of the European cultural heritage and digital libraries are key aspects of the i2010 strategy and the recently implemented Digital Agenda of the European Union.^[234] Therefore, the necessity to resolve once for all the hindrance that orphan works represent for digitization projects is now on top of the European agenda. To deal with the economic, legal and technological issues raised by the i2010 strategy, the EU Commission published a Recommendation^[235]  and set up a High Level Expert Group on the European Digital Libraries initiative. The High Level Expert Group tackled the key challenges of digital preservation, web harvesting, orphan works and out of print works.^[236] In addition, the High Level Expert Group defined the guidelines for public-private partnership for digitization, online accessibility and digital preservation of Europe’s collective memory.^[237]

Neelie Kroes, European Commission Vice-President for the Digital Agenda, sums up pretty well the threat to European cultural heritage.

Look at the situation of those trying to digitise cultural works. Europeana, the online portal of libraries, museums and archives in Europe, is one key example. What a digital wonder this is: a single access point for cultural treasures that would otherwise be difficult to access, hidden or even forgotten. Will this 12 million-strong collection of books, pictures, maps, music pieces and videos stall because copyright gets in the way? I hope not. But when it comes to 20th century materials, even to digitise and publish orphan works and out-of-distribution works, we have a large problem indeed. Europeana could be condemned to be a niche player rather than a world leader if it cannot be granted licenses and share the full catalogue of written and audio-visual material held in our cultural institutions. And it will be frustrated in that ambition if it cannot team up with commercial partners on terms that are consistent with public policy and with the interests of right-holders. And all sorts of other possible initiatives, public and private, will also be frustrated.^[238] 

The relevant social value of digitization of our cultural heritage in terms of openness and accessibility may be potentially vanished by copyright strictures. So far, groundbreaking technological advancement, which could open our society up to unprecedented cultural exposure, is hindered by an outmoded legal framework.

Copyright Expansion

Copyright term extension is only one tool of commodification of information and creativity. Authors have noted that “as we have moved to an economy in which information and communication is a highly valued resource, a broad array of expanding  intellectual property rights have colonized uses and subject matter that were previously public domain.”^[239] As 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, exceptions and limitations.

Firstly, the expansion of copyright has caused the contraction of the structural public domain. Protected subject matter has been systematically expanded “into every corner.” Copyright protection has been expanded from books to maps and photographs, to sound recording and movies, to software and databases. In some instances, new quasi-copyrights have been created, therefore restricting accordingly the public domain, as in case of the introduction of sui generis database rights in the European Union, a quintessential example of the process of commodification of information.^[240] Additionally, subject-matter expansion has been coupled with the attribution of strong commercial distribution rights, especially the right to control imports and rental rights,^[241] and the strengthening of the right to make derivative works. Though the mentioned expansion is in part a response to technological development, it is worth noting that lobbying from cultural conglomerates played an import role in amplifying this process of expansion beyond strict public interest, as we will discuss in more details later.^[242] 

Together with the contraction of the structural public domain, the functional public domain has been similarly eroded by narrowing the scope of fair dealing or fair use, exceptions and limitations to copyright and public interest rights. “This has been accompanied by a significant shifts in rhetoric,” Fiona Macmillan has argued. “Not only have the monopoly privileges of intellectual property owners become ‘rights’, user rights have become ‘defences’ or ‘exceptions’. The public domain is thus protected by ‘exceptions’ to ‘rights’. Nothing could better encapsulate its current vulnerability.”^[243] 

The erosion of fair dealing was initiated early in the history of copyright by switching the focus from what the second comer had added to what had taken.^[244] In the following years the contraction of fair dealing and public interest rights has moved forward as a consequence of an increasing confusion on the scope of those rights.^[245] This confusion has made the users of copyrighted works more reluctant in relying on fair dealing. Conversely, the same confusion has empowered the copyright owners. However, the erosion of public interest rights reached its peak in very recent times as a side effect of the transposition of the authorship rights from the analog to the digital medium. In particular, as we will discuss later, 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.

There is, finally, an additional dimension of the process of copyright expansion. This expansion has been recently appreciated only in few jurisdictions, particularly in the United States. However, this expansion was perceived in Europe as well, although at an earlier stage. 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. In the early days, copyright restricted publishers and their monopolies by very narrow restrictions. Later copyright expanded to include any work that was registered or deposited in a copyright office's registrar or other institution. Copyright was for exceptions and anything else was "Public Domain". In some jurisdictions, copyright was expanded to include any work bearing the copyright sign and the year, such as © 1977. Copyright was still an exception, though. However, by the international abolition of formalities, copyright was declared the default, and public domain was the exception.^[246]  Any work by any author is assumed to be copyrighted at the moment of its creation regardless what the real intention of the author is. 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 1st general principle of the Public Domain Manifesto that “[t]he Public Domain is the rule, copyright protection is the exception.”  

In this regard, formalities and registration systems may serve the scope of enriching the public domain and avoiding a relevant part of the transaction costs burdening digital creativity and digitization projects. Therefore, it is hotly debated whether formalities are an obstacle or an opportunity for the promotion of culture and creativity in the digital era.^[247]  COMMUNIA upholds the position that the abolition of formalities no longer serves the purpose that it served in the analog world. 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, such as the need to fill in a copyright registration form in a foreign language. The digitized and interconnected world allows for instantaneous sharing of information and minimizes 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. Therefore, 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.

Moral Rights and the Public Domain Payant

In Europe the tension between copyright protection and the public domain is harshened by the intensity of moral rights. The strength of moral rights, especially the moral right of integrity, conversely weakens the public domain.

As constructed in most European jurisdictions, moral rights are inalienable and potentially perpetual. Any copyright expirations, public domain dedications or the licencing of a creative work under open access and re-use 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, colorizations of movies, or the application of other future unforeseeable technological tools that may somehow temper with or modify the perception of the original work may all trigger the reaction of the author’s estate in perpetuity.

The promotion of the public domain calls for an effort towards harmonization at the European level of the definition of the right of integrity and duration of moral rights after the death of the author. COMMUNIA trusts that moral rights should not extend longer than the economic rights. This arrangement would be compliant with the minimum standard set by the Bene Convention. According to Article 6bis (2) of the Berne Convention, the moral rights of the author “shall, after his death, be maintained, at least until the expiry of the economic rights . . . .”^[248]

Additionally, it is worth mentioning that few European countries have in place domaine public payant arrangements. The term domaine public payant was coined by Victor Hugo in a speech of 1878 to refer to a right for publishers to publish works after the death of an author upon the condition of paying a low royalty to the direct heirs.^[249] In modern times, under the domain public payant doctrine the entrance of a work within the public domain would not necessarily make the use of that work free of charge.^[250] Although other proposals have been put forward, the most common domaine public payant model would gather the sums collected under this regime into a cultural fund and award subsidies to authors with a view to fostering creativity. The domaine public payant proposals have never been widely put into practice, nevertheless, where in place, they undermine the notion itself of the public domain.

A form of erosion of the public domain that is very similar to the domaine public payant has been embodied in the mechanism set up by Article 4 of the Copyright Term Directive. Article 4 provides that the publisher of an unpublished work whose term of protection is expired shall be given an extra term of protection of 25 years.

Technological Enclosure of Culture

As anticipated, the crucial driver of the modern drift toward commodification of the public domain is a mix of technology and legislation. Digital networks may indifferently serve openness and perfect control. This is because the “lex informatica”^[251] provides that code is law, therefore any change in hardware and software shall change the “morals” of cyberspace.^[252] The initial open nature of the Internet has been gradually substituted by architectures of greater and greater control. The preference for architectures of control rather than architectures of openness have diminished and will increasingly diminish the digital public domain. Technology and architecture of control have a central role in the commodification of information, culture, and the public domain. Technology was able to appropriate and fence informational value that was previously unowned and unprotected. That value was appropriated through the adoption of technological protection measures (TPMs) or digital right management (DRM) systems to control access and use of creative works in the digital environment. TPMs served as a tool to empower copyright holders to control any use of copyrighted works, including uses that previously could not be restrained.^[253] This capacity of control turned information into perfect commodities.^[254]

The increased control has been the consequence of the insistence of governments and commercial entities.^[255] The seal on a policy of control was set by the introduction of the so called anti-circumvention provisions. The WIPO Internet Treaties first, ^[256] the Digital Millennium Copyright Act in the United States^[257] and the Directive 29/01/EC in Europe later,^[258] enacted 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.^[259]

As Professor Boyle argues, this has been an inadequate answer to what was perceived as the Internet or digital threat.^[260] This answer concerns now greatly users’ rights, market competition and the public domain.^[261] In particular, anti-circumvention provisions have negative effects both on the structural and the functional public domain. COMMUNIA policy Recommendation # 7 is pleading for an immediate intervention to protect the public domain against the adverse effect of TPMs.

The foremost concern with this legal and technological bundle is that DRM and anti-circumvention provisions, as they are programmed so far, can make copyright perpetual.^[262] 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 DRM technologies. The persistence of technological protection measures after the expiration of copyright will impoverish the digital public domain greatly by precluding new works to enter it.

A more subtle point is related to the danger that the architecture of the networks will make the law irrelevant.^[263] An excerpt from Professor Lessig is instructive to grasp the terms and the dimension of the problem.

Through a relatively swift transformation in the basic elements of the network, the network is increasingly recognizing a permissions layer, layered onto the original Internet. This permissions layer will enforce the permission the law establishes by default. It will require, in a physical sense, the permission that the law now requires by rule. This will be the consequence of the set of technologies ordinarily referred to as "DRM"--digital rights management technologies. DRM technologies enable fine-grained control over how content is used in a digital environment. They control whether the content can be copied, or how often; they control how long the content survives; they control whom the content can be shared with, or whether it can be altered or transformed. DRM thus uses technology to enforce control of content, independent of whether the law authorizes that control.”^[264]

This change will affect greatly our ecology of creativity and the public domain. In a very obvious way, DRM technologies will affect the public domain by restricting or completely preventing fair dealings, privileged and fair uses.^[265] DRM technology 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. It is worth noting that, as long as technological protection measures will prevent the application of exceptions allowing copying in news media and quotations, they may be viewed also as hampering freedom of expression.^[266] As James Boyle describes the anti-circumvention provisions, it is like if we had made illegal to cut barbed wire fences regardless if they fence private property, public property or they obstruct a public way and if we had made the manufacture and possession of wire cutters a crime as well.^[267] 

As matter of the fact, the pristine wording of the WIPO Internet Treaties stated that sanctions had to be applied to the circumvention of effective technological measures that restrict acts in respect of works of authorship which are not authorized by their authors or permitted by law. Nevertheless, only few regional implementations make any specific exceptions to the anti-circumvention provisions when digital rights management technologies restrict acts that are permitted by the law.^[268] In particular, European law, as well as similarly U.S. law, more narrowly provides that

Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law [ . . . ] the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.^[269]

This is to say that rights holders should make available the means to benefit from copyright exceptions and limitation, fair uses, and fair dealings, but if they do not, any circumvention is still punishable. A team of scholars from the Institute for Information Law at the University of Amsterdam (IViR) has noted that “for even if article 6(4) creates an obligation to provide the means to exercise a limitation, this obligation is imposed on rights owners and does not give users any authority to perform acts of circumvention themselves.”^[270] Circumventing a digital right management technology that restricts acts permitted by the law is a civil wrong, and perhaps a crime, as such. This conclusion is supported by the preparatory works that introduced the Directive 2001/29/EC and the definition of technological measures. The Council made clear that

Art. 6(1) protects against circumvention of all technological measures designed to prevent or restrict acts not authorized by the rightholder, regardless of whether the person performing the circumvention is a beneficiary of one of the exceptions provided for in Article 5.^[271]

Further, according to Directive 2001/29/EC, the obligation of the rights holder, and Member States, to provide users with the means to exercise exceptions and limitations against TPMs, “shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”^[272] Given that Recital 53 of the Directive 2001/29/EC specifically excludes “non-interactive forms of online use” from this last provision, “the exclusion actually extends to any work offered “on-demand”, covering any work transmitted over the Internet, as long as the user is able to choose and initialize that transmission.”^[273]

Additionally, it is worth noting that the enactment of the last proposed text of the Anti-Counterfeiting Trade Agreement (ACTA) would worsen the negative impact of the TPMs on the public domain at the international level. ACTA would generally require stronger protection of TPMs than the WIPO Treaties, without providing any mechanisms to ensure the exercise and enforcement of exceptions and limitations.^[274] In particular, ACTA would provide a broad definition of TPMs, not included in the WIPO Treaties. Further, ACTA would prohibit both acts of circumvention and preparatory acts. Finally, ACTA would specifically cover technological measures having both legal and illegal functions. The need for the European institutions to carefully reconsider the adoption of any stronger protection of technological protection measures at the international level has been recently stressed in a common opinion delivered by several European academics.^[275]

Finally, as an additional effect of TPMs over our cultural environment, technology will prevent that practice of free culture that today happens, albeit against the law. As scholars have explained “the code will then make the law effective by making it effectively impossible for anyone to ignore the law.”^[276] This is particularly disturbing because an entire new ecology of creativity has been assembled around the re-use of content for which permission cannot be secured from the right holders, either because of economic constraints or because the use is not allowed by the copyright owner. The implementation of ubiquitous DRM technologies may silence the most innovative part of the digital revolution and “smother much of the potential of digital networks to reinvigorate a democratic free culture.”^[277] This change will not undermine the value of the Internet as a read-only medium. However, this change will destroy the potentials of the internet as a distributed, decentralized, interactive, and user-based creative medium. Therefore, “while the practical consequence of this change today may be small, the practical consequence tomorrow, once the technologies of control get added into the mix, will be profound.”^[278] 

Contractual Enclosure of Culture

In recent years, contract law has also been deployed to commodify and appropriate information supposedly in the public domain.^[279] Contracts may be employed to restrict or prohibit uses of works that would otherwise be permitted under copyright law. Current mass-market licencing practices increasingly tend to restrict or prohibit certain uses of works over the Internet far beyond the exclusive rights granted by 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. Click-wrap agreement may imply that restrictions on use on online content is extend to unprotected material or may prohibit any reproduction of the content for any purpose whatsoever.^[280] 

The most powerful example is that of click-wrap agreements that may state that some uses of a 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 Recommendation # 5 and Recommendation #6 set up principles to affirmatively protect the public domain against the misappropriation of public domain works with special emphasis on the digital reproduction of public domain works.

However, 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 Professor Lucie Guibault noted at the 1st COMMUNIA Conference,

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.^[281]

This was never the case in the analog 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 in the digital environment.

Besides the capacity of technological protection measures to control any types of use of a piece of information, DRM systems may also assert control over more types of information if used in combination with enforceable contracts.^[282] Technological 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, “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 . . . .”^[283] 

The mentioned contractual and technological synergy may burden the user with an insurmountable set of impediments to enjoy public domain information. Firstly, the legitimacy of the mass-licenses may be invalidated only in exceptional circumstances.^[284] Therefore, the user may be contractually liable. This conclusion follows, on one end, from the inconsistent case law over Europe on the enforcement of licenses wrapping together information regardless of their public domain or private nature.^[285]  On the other end, this conclusion is supported by the absence of a mechanism for solving conflicts between copyright privileged uses and freedom of contract in continental Europe copyright law. The validity of the contract should be, therefore, tested under general rules of law. Nevertheless, no general principle seems to provide a mandatory requirement that the copyright holder shall exercise its right in conformity with the intended purpose and the function of the copyright system.^[286] Please also note that similar conclusions may be reached also under U.S. law, therefore making the capacity of mass-market licenses to undermine the digital public domain a globalized threat.^[287] 

Secondly, even if the contractual legitimacy of the licenses may be challenged, any attempt to circumvent a technological measure may trigger users’ liability.^[288] This even more so, because DRM systems prevent use of both protected and unprotected information that may be bundled together in an information product. The act of gaining access to the non-copyrightable information will imply also the unlawful circumvention of technological measures to access copyrightable information. This act will most probably trigger liability under relevant law.^[289]

Thirdly, even in the case the user may successfully argue that bypassing a technological measure is not actionable because the law only protects technological measures designed to “prevent or restrict acts which are not authorized by the rightholder of any copyright or any related right”,^[290] it would be necessary to manufacture a tool to circumvent the technological measure. However, the manufacture and the sale of any such tools would trigger liability under relevant law.^[291] Therefore, no anti-circumventing tool should be lawfully available on the market. In the worst case scenario, this may deprive the users of any lawful means to use structural or functional public domain information.

In any event, the legal uncertainty and the described triple layer of impediments would make the enjoyment of public domain works extremely burdensome for the average user. In conclusion, mass-market licenses coupled with anti-circumvention measures may threat the “integrity of the public domain, insofar as they may contribute to displace democratically established public ordering assumptions.”^[292] The control over unprotected information will hinder competition in the marketplace of ideas. Next generation products will become more costly, fewer information will be available, and more and more competitors will be prevented from offering reasonable substitutes. 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.^[293]

Copyright Censorship and Cultural Diversity

The public domain is the place where, to borrow the words of Tacitus, “men [can] think as they please and speak as they [think].”^[294] Any encroachment upon the public domain is an encroachment upon our capacity of 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. As Michael Birnhack has argued, both concepts “construct, or aim at constructing, a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle.”^[295] The close connection between public domain and free speech should persuade us to think about the public domain as a fundamental human right. As powerfully stated, “the public domain represents our free speech concerns within the realm of copyright law.”^[296]

Though traditionally viewed as the “engine of free expression”,^[297] it is increasingly noted that copyright law may impinge heavily on freedom of speech.^[298] Copyright law is characterized by continuing tensions between exclusive private rights on the one hand and the freedom to read and express oneself on the other hand.^[299] Copying and reusing other expressions can be often part of freedom of speech.^[300] Many European authors, together with their transatlantic counterparts, worry about current trends toward overprotection in the potential conflict between copyright, free speech and the public right of information. Therefore, the relationship between copyright and freedom of expression must be carefully balanced when enacting new legislation that may compress the public domain. Focusing on trade alone when enacting intellectual property policies may have relevant unintended social consequences.^[301] So far, legislations have failed to prevent commercialization of copyright while, in most cases, any actions to balance the copyright/free speech conflict has been demanded to the courts.^[302] 

The public domain is pivotal to our ability to express ourselves freely. The public domain is a metaphysical public forum, a place that belongs “to everyone, because [it] belong[s] to no one, from which people cannot be excluded on the grounds that a property owner wishes to exclude them.”^[303] Any increase or decrease in the public domain will proportionally affect our freedom of speech. As Waldron comments, “[t]he private appropriation of the public realm of cultural artifacts restricts and controls the moves that can be made therein by the rest of us.”^[304] Yochai Benkler discusses the idea in details by illustrating that

[f]ocusing on the duty side of intellectual property clarifies that we are free to communicate at a given moment only to the extent we communicate using information that is in the public domain, we own, or we have permission to use for the proposed communication. An increase in the amount of material one person owns decreases the communicative components freely available to all others. Obtaining permission to use already assumes a prior state of unfreedom, lifted at the discretion of a person with authority over our proposed use. Only an increase in the public domain--an increase in the range of uses presumptively privileged to all--generally increases the freedom of a society's constituents to communicate.^[305]

In addition, the above is to be read always through the lens of a further key argument: the public domain propels a rich and diverse expression 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.

The extension of property “rights into every corner” favours large scale organizations that own information inventories over other types of information producers.^[306] An organization that owns a large information inventory, in fact, can respond to the loss of public domain material by increasing the reuse of its own inventory. Other organizations and individuals must buy on the market information that are no longer available in the public domain. The costs of information producers that do not have large inventories and reutilization options will increase more rapidly than large scale vertically integrated organizations.  In short, the legislator is to be reminded that when it passes a law extending and enlarging property rights on creative content,

[i]t is choosing to increase the costs of academic scholars, whose libraries must decide whether to buy more publications or more access rights to a smaller number of publications, to increase Reed Elsevier's returns. It is choosing to increase the costs of amateurs—like children who would put together web-based projects about their favorite cartoon characters—in order to increase the returns to Disney. It is choosing to raise the economic barriers facing participants in the Free Republic forum in order to increase the returns to the Washington Post.^[307] 

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.^[308]

As an interrelated issue, copyright expansion and public domain enclosure affect our freedom of speech by impinging on related values as cultural diversity, identity politics and participation. Though there is a strong belief that copyright protection is essential to cultural diversity and self-determination,^[309] Fiona Macmillan has duly noted that

if copyright is necessary for the promotion of cultural diversity and self-determination, then something has gone wrong and we need to look very carefully again at the shape of copyright law and consider whether there are parts that we might want to jettison or change dramatically [ . . . ] if we want it to serve the objective of cultural diversity and self-determination.^[310]

Indeed, copyright expansion and commodification has facilitated aggregation of private power on cultural goods and services that may function as a cultural filter on what we can see, hear, and read. Cultural filtering, homogenization and the loss of the public domain have exacerbated the “dysfunctional relationship between copyright and cultural diversity.”^[311] Therefore, the international copyright system may pose a threat to the goals of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the European Union.^[312]

Historically, cultural diversity has been a fundamental value in the European Union. 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.’"^[313] In general terms, the process of European integration has been based on the assumption that the co-operation among State members would not have been detrimental to their cultural distinctiveness. The promotion of the value of cultural diversity is embedded in the European constitutional texts and fostered by the existing practice of the European Union.^[314] In addition, since ratification in 2007, the European Union has been bound to its obligations under the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Therefore, all of the relevant European policy decisions should be compelled to conform to the Convention’s cultural diversity obligations. Recently, the Digital Agenda for Europe has stressed the need to promoting cultural diversity in compliance with the UNESCO Convention, especially in the digital environment.^[315]

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.^[316]  Policy-makers in the EU are generally overly exposed to lobbyists advocating the need for better copyright law as a dogma and, therefore, fail to implement the most valuable parts of the Convention. Diversity of cultural expression is particularly threatened by IPRs “in markets that are dominated by big corporations exercising collective power as oligopolies.”^[317] The study concluded that the Commission should be particularly cautious when pushing for extending copyright protection which could also reduce creativity and freedom of expression.

These conclusions are generally accepted by the most recent scholarly reviews of the public domain. Firstly, it is noted that copyright expansion and commodification can lead to global domination of a market for cultural output.^[318] In general terms, the emphasis of this argument is on the capacity of cultural conglomerates to control dominant cultural images and the power deriving from that control. That power will sharpen the ability of media and entertainment corporations to shape taste and demand through cultural filtering. Correspondently, that same power will enhance the ability to suppress critical speech about the process of taste-shaping.

In addition, it has been largely outlined why centralization of information is an evil for a democratic system.^[319] In general, concentrated systems are likely to exclude challenges to prevailing wisdom^[320] and translate unequal distribution of economic power into unequal distribution of power to express ideas.^[321] Scholars have noted that, together with the traditional case in which a secondary author wishes to make use of existing copyrighted material,

the unique characteristics of media products, as public and solidarity goods, together with the advantages that extensive copyright protection grants large-scale corporate media, prevent alternative, noninfringing creative materials from reaching effective audience attention and competing equally for the public’s attention and cultural preferences. Extensive copyright protection does so, first, by enabling commercialized media to deepen their market dominance and the cultural centrality of their products through ancillary and derivative markets, and second, by producing a “solidarity value” for the commercialized and commodified nature of media products.^[322]

Cultural conglomerates deepen their market dominance through horizontal and vertical integration. 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, noninfringing creative material out of the market. In fact, horizontal and vertical mergers and acquisitions have been the trend in the entertainment and media market for the last three decades.^[323] This process of concentration endangers closely cultural diversity in that “a handful – six to ten vertically integrated communications companies – will soon produce, own and distribute the bulk of the culture and information circulating in the global marketplace.”^[324] As a consequence, global media and entertainment oligopolies will impose an homogenizing effect on local culture.

Moreover, the internal validity of the mentioned conclusions is accrued with regard to information production in the digital environment. In particular, public domain enclosure and copyright expansion are very pernicious for the diversity and decentralization of modern forms of peer information production.

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 nonprofessional information producers.^[325]

Similar conclusions have been reached by the Digital Agenda for Europe when discussing the application of the UNESCO Convention principles to new digital environments and noting that  “[t]he internet is also a driver of greater pluralism in the media, giving both access to a wider range of sources and points of view as well as the means for individuals – who might otherwise be denied the opportunity – to express themselves fully and openly.”^[326] 

Amateur 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. Nonprofessional information production empowered the civic society with the ability to produce truly independent and diverse speech. Enclosure would strike hard at the potentialities and openness of digital peer production. In this regard,  any policy intervention should not underestimate the decreased production by organizations using strategies that do not benefit from copyright expansion. ^[327] The still unexplored wealth of peer production in digital environments make this note even more cautionary.

Enclosure is likely to nullify the diverse and decentralized process of information production spread over the Internet.  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.”^[328] 

Ironically, copyright law may end up serving the old enemy against which it was originally unleashed. Widely recognized 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.

Legislative Process, Legal Uncertainty and Harmonization

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 interests of users and the public, lack of transparency of the legislative process, obscurity of copyright legal provisions, and lack of legal harmonization are all factors that aggravate the tension between public domain and copyright protection.

 Enclosure 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.^[329] 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 classical 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.^[330] Users’ class interests have always hardly been represented, in particular in the pre-Internet and the early Internet era when copyright matters where considered entertainment industry sector specific issues. The final outcome has been the implementation of a copyright system 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.

As a related problem, often the copyright legislative process appears to be biased by a certain amount of lack of transparency and due process. The Anti-Counterfeiting Trade Agreement (ACTA) is a good example of secrecy in the process of enacting copyright and intellectual property laws. ACTA is a secret treaty that is being negotiated away from the UN, behind closed doors. The very existence of ACTA was surrounded by total secrecy from 2005 to 2007. No information on negotiations were disclosed until 2008. Only in 2010, after leaks and strong transparency concerns, the first draft text has been released. As reported by a Wikileaks cable of November 2008, even negotiating parties were concerned that the uncommon level of secrecy that has been set for ACTA renders impossible to conduct consultations with stakeholders and legislatures.^[331] According to Professor Geist, ACTA appears to have set a new standard for secrecy in negotiating intellectual property matters at the international level.^[332] ACTA includes proposals to search iPods, phones and laptop hard-drives at the world's borders to look for infringement, although the last draft does also incorporate a de minimis provision. ACTA may impinge heavily on freedoms of citizens, privileged uses and public interest rights. Nevertheless, users are completely excluded from the bargaining table of ACTA, while information on the negotiations and relevant provisions included in the agreement are scarce and contradictory.

The asymmetric distribution of interests, power and institutions in IP politics and the difficulty of representing public interest in copyright matters due to an unbalanced legislative process have recently lead to proposals for a European Public Domain Supervisor, acting as a guardian of the fundamental rights and freedoms relating to the public domain.^[333] 

Legal 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 jeopardizes users’ prerogatives, rises transaction costs and propel market inefficiency. The fundamental drivers of legal uncertainty are obscure laws and a lack of harmonization.  

Authors have argued that copyright law is too obscure and complex for the users.^[334] Copyright law is drafted for the market players, not for users. By way of example, it is worth mentioning Article 6(4) of the Information Society Directive that Professor Lucie Guibault describes as “extremely complex, vague and prone to interpretation.”^[335] It is illustrative to observe that the provision refers to actions to be taken to ensure that users may benefit form exceptions and limitations with respect to works protected by TPMs. The obscurity of copyright law 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 the misuse and abuse of copyright law 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 has made everybody a potential author as well as a potential infringer. Rip, mix and burn is the way to enjoy and create culture for young generations. Therefore, extraordinarily technical legislation is more and more often enforced against the users without them being involved in the legislative process.

The public domain suffers also from legal uncertainty that is the effect of lack of harmonization among European national jurisdictions. In general, time, circumstances, and jurisdictions will influence the dividing line between public and private, so that “it will always remain impossible to determine with accuracy, at any given time, that which is public domain and that which is not.”^[336] As noted earlier, some of the sources of the public domain are inherently unpredictable. On this unpredictability rests the inevitable indeterminacy of the public domain. Lack of harmonization of the principles and criteria governing “that which is public domain and that which is not” 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.

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. As we have noted earlier, 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 harmonized only with respect to new or controversial subject matters, such as software, databases and photographs.^[337] In addition, the concept of originality is still largely unharmonized throughout Europe, although the recent Infopaq ECJ decision may have in part propelled the process of harmonization of the concept.^[338] The Infopaq decision aligned the standard for creativity to the U.S. standard^[339] by requiring that only original works are copyright protected “in the sense that they are their author’s own intellectual creation”. This seems to rule out from the concept of originality all those works where no hint of creativity is involved. The ECJ bases the decision on the acquis communautaire and the provisions regarding the originality of computer programs, databases and photographs in preexisting directives. However, fundamental differences between continental and common law system still remain, especially considering that the definition of the concept of originality in the United Kingdom is governed by “sweet of the brow” doctrines. Under UK common law, skill, judgment and labour are sufficient requirement for copyright protection, while creativity may be missing. COMMUNIA calls for a solution to this unpredictability through its policy Recommendation # 4.

The diversity of the European legal framework adds peculiar complexity to the issue of copyright duration as well. Despite the fact that efforts have been made toward harmonization, 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 in Europe. As a consequence of those intricacies, the structural public domain remains an elusive concept due to the difficulty in Europe to know whether the duration of protection has expired. COMMUNIA policy Recommendation # 4 calls for further harmonization of rules of copyright duration to redress the tension, strengthen the public domain and public prerogatives.

Finally, lack of harmonization of exceptions and limitations in Europe plays a nefarious role for the public domain, as spelled out by Professor Lucie Guibault at the 1st COMMUNIA Conference.^[340] Notwithstanding the Information Society Directive aimed at harmonizing exceptions and limitations, that goal most probably failed, and legal uncertainty still persists. All but one of the limitations in the regime set up by the Information Society Directive were optional, and  the regime provides the Member States with ample discretion to decide if and how they implement the limitations.^[341] This was a direct consequence of the highly controversial issue that the harmonization exceptions and limitations proved to be.^[342] As foreseeable, the Member States have implemented the limitations very differently by construing them according to their own traditions and priorities. This 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. As a source of legal uncertainty, the lack of harmonization of exceptions and limitations raises transaction costs and especially troubles individual users. As mentioned, 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. To that end, however, it is of essence to improve harmonization of exceptions and limitations across European national jurisdictions, together with the introduction of an open fair dealing exception to close any loopholes that predefined exceptions and limitations may have. COMMUNIA policy Recommendation # 3 asks for harmonization and revision of exceptions and limitations to copyright in Europe.

---

As powerfully stated,  “a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all.”^[343] Propertization and enclosure of the public domain should be opposed as contrary to the historical scope of copyright. The return of the commons, in fact, has a credible source in the history of copyright law.^[344] Copyright law was born in Europe and elsewhere with broad civic purposes as well as strong anti-monopolistic sentiment.^[345] Copyright was conceived as a limited monopoly to be granted to fulfill a higher end. The first copyright law, the Statue of Anne, embodied in the title its civic purpose by emphasizing the encouragement of learning.^[346] 

The construction of literary property departed from the fundamental principles of traditional property rights. The rational for that departure, for the limited term of copyright and the consequent emergence of the public domain, has to be found in the emergence of the “public sphere.”^[347] Jürgen Habermas identified this emergence in a social process giving birth to a new sense of civil society as a collectivity distinct from the family or the state.^[348] The emergence of the “public sphere” and the Enlightenment commitment to the circulation of knowledge drafted the agenda of the protection of creative artifacts. Protection of private interests was viewed as a means, not as an end in the pristine copyright-public domain discourse.

This is unquestionable in the United States where the natural rights view has been rejected or dramatically limited by utilitarian legal theories.^[349] The words of Thomas Jefferson sum up the utilitarian view:

[i]f nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.... He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.^[350]

Jefferson concludes by saying that intellectual property rights might be necessary and “society may give an exclusive right to the profit arising from [inventions] as an encouragement to men to pursue ideas which may produce utility.”^[351] 

Although natural rights theory dominated the European early copyright debate, European legal theorists drafted arguments against the idea of copyright as a traditional property as strong as the Jefferson’s utilitarian ones. The natural rights view was modified in Europe by the emergence of the discourse of the public domain propelled by a modern sense of civil collectivity and the Enlightenment idea of knowledge.

The British debate that followed the enactment of the Statute of Anne strongly argued in favor of the public value of cultural artifacts and against their propertization. In 1774, Lord Cadmen addressed the House of Lords by noting that “science and learning are in their nature publici juris, and they ought to be as free and general as air or water.”^[352] Lord Cadmen speech won the day. The House of Lords rejected the claim for a perpetual common law right of literary property and the public domain was finally confirmed. Few years later, in 1841, Lord Thomas Babington Maculay revived the anti-monopoly tradition before the House of Commons. Arguing against a greatly extended copyright term, Maculay remarked:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. [ . . . ] It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.^[353]

In France, at the time the concept of public domain is first mentioned in the French Decree of 1791, quite unexpectedly, the recognition and the enlargement of the public domain was as important as the protection of author’s works.^[354] The abused selective quotations from Le Chapelier are misleading of what the early droit d’auteur debate was in France.^[355] In fact, Le Chapelier warned us that “the most sacred, the most legitimate, the most indisputable, and […] the most personal of all properties [, . . .] the work which is the fruit of a writer’s thought” is “a property of a different kind from all the other properties.”^[356] Le Chapelier continued by arguing that, once the work is disclosed to the public, “the writer has affiliated the public with his property, or rather has fully transmitted his property to the public.”^[357] The author’s work is, therefore, public property, whose disposal is under the dominion of the author for the term established by law “because it is extremely just that men who cultivate the domain of ideas be able to draw some fruits of their labors,” Le Chapelier says.^[358]

Moreover, it has been noted that much 19th century French copyright rhetoric anticipated modern cyber-libertarian arguments.^[359] The Conseiller d’Etat Riché emphasized in 1866 that upon publication the work “is no longer the property of its producer” because “in the nature of things there is no literary property right in a work once it has been given over to the public.”^[360] Joseph Prudhon noted that “[i]ntellectual property does not merely encroach on the public domain; it cheats the public of its share in the production of all ideas and all expressions.”^[361] 

The modern public domain project takes over from where Kames, Jefferson, Le Chapelier, and Maculay have left it. Modern and old advocates of the public domain remind us that the rhetoric of property does not have it all. They remind us that the rhetoric of property has derailed the original civic and anti-monopolistic purpose of copyright law. Copyright law is meant to encourage learning, in the language of the Statute of Anne, and to promote progress, as the US Constitution formulation puts it.^[362] Modern and old thinkers remind us that the public domain is not “an unintended by product, or ‘graveyard’ of copyrighted works but its very goal.”^[363] 

A new politics of intellectual productions and creativity is sought that may re-define the hierarchy of priorities.  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.”^[364] 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.”^[365] If Europe is eager to take up a leading role in the digital environment as stated in the i2010 strategy and the Digital Agenda for Europe, 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. Private incentive to creativity shall naturally follow like exceptions from the rule, to quote again the Public Domain Manifesto.

But there is more to it. We all are citizens of the public domain. As David Lange said, this citizenship is “arising from the exercise of creative imagination rather than as a concomitant of birth.”^[366] The public domain is the only place where we truly belong. The public domain encompasses all we are and all the prospects for our future. There is no idea of original authorship, even the most powerful, that would help us to locate our individuality as the public domain does. In this regard, the words of one of the most relevant thinkers and authors in Western culture are an enlightening manifesto of how far human citizenship of the public domain goes:

[w]hat 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.^[367]

The public domain is our country and our home. Enclosure and propertization of the public domain is the equivalent of depriving citizens of their country. It is the equivalent of locking people out of their home. Any policy oriented to the enhancement of creativity should be respectful of our citizenship of the public domain. Any such policy should nourish, protect, and promote the public domain. Any such policy should make, for every citizen, the public domain “a place like home, where, when you go there, they have to take you in and let you dance.”^[368] 

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