Challenges and Bottlenecks

Enclosure of the Public Domain and expansion of Copyright

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.

[175] See Jerome H. Reichman and Jonathan A. Franklin, Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information, 147 U. Penn. L. Rev. 875 (1999).

[176] See P. Bernt Hugenholtz, Owning Science: Intellectual Property Rights as Impediments to Knowledge Sharing, speech delivered at the 2nd COMMUNIA Conference (June 29, 2001); see also Neil W. Netanel, Copyright’s Paradox (Oxford University Press 2008) [hereinafter Netanel, Copyright’s Paradox].

[177] Boyle, The Public Domain, supra note 91, at  54-82.

[178] David and Rubin, Restricting Access to Books on the Internet, supra note 174, at 50.

[179] Benkler, Free as the Air to Common Use, supra note 83, at 354.

[180] See Boyle, The Second Enclosure Movement, supra note 65; Boyle, The Public Domain, supra note 65; see also Keith Maskus E. & Jerome H. Reichman, The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, 7 J. Int'l Econ. L. 279 (2004); David Bollier, Silent Theft: The private Plunder of Our Common Wealth (Routledge 2002).

[181] See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan Publications 2002).

[182] Niva Elkin-Koren, It’s All About Control: Rethinking Copyright in the New Information Landscape, in Commodification of Information: Political, Social, and Cultural Ramifications 81-82 (Niva Elkin-Koren and Neil W. Netanel eds., Kluwer Law International 2002) [hereinafter Elkin-Koren, It’s All About Control].

[183] See The Commodification of Information: Political, Social, and Cultural Ramifications (Niva Elkin-Koren & Neil W. Netanel eds., Kluwer Law International 2002).

[184] P. Bernt Hugenholtz and Lucie Guibault, The Future of the Public Domain: An Introduction, in The Future of the Public Domain: Identifying the Commons In Information Law 1 (Lucie Guibault and P. Bernt Hugenholtz eds., Kluwer Law International 2006).

[185] See Hesse and Ostrom, Introduction, supra note 100, at 12.

[186] Hesse and Ostrom, Ideas, Artifacts, and Facilities, supra note 103, at 112.

[187] See Rose, Nine-Tenths of the Law, supra note 69, at 85.

[188] See H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. Pol. Econ. 124 (1954) and Anthony D. Scott, The Fishery: The Objectives of Sole Ownership, 63 J. Pol. Econ. 116 (1955) (introducing an economic analysis of fisheries that demonstrated that unlimited harvesting of high–demand fish by multiple individuals is both economically and environmentally unsustainable); see also Chander Anupam and Sunder Madhavi, The Romance of the Public Domain, 92 Cal. L. Rev. 1331, 1332-1333 (2004);

[189] See generally Lee A. Fennell,  Commons, Anticommons, Semicommons, in Research Handbook on the Economics of Property Law (Kenneth Ayotte and Henry E. Smith eds., Edward Elgar 2010).

[190] See Harold Demsetz, Toward a Theory of Property Rights, 57 American Econ. Rev. 347 (1967); see also Salzberger, Economic Analysis of the Public Domain, supra note 125, at 33-36.

[191] See Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968);

[192] Boyle, Foreword, supra note 106, at 7.

[193] See Cohen, Copyright, Commodification, and Culture, supra note 77, at 134-135.

[194] See William Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Harvard University Press 2003); William Landes and Richard A. Posner, Indefinitely Renewable Copyright, 70 U. Chicago L. Rev. 471, 475, 483 (2003).

[195] Paul Goldstein, Copyright's Highway: From Gutenberg To The Celestial Jukebox 236 (Stanford University Press 1994); see also Wagner R. Polk, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 Colum. L. Rev. 995 (2003) (arguing that “increasing the appropriability of information goods is likely to increase, rather than diminish, the quantity of “open” information”).

[196] See Yochai Benkler, A Political Economy of the Public Domain: Markets in Information Goods vs. The Marketplace of Ideas, in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society 270-272 (Rochelle Dreyfuss, Diane L Zimmerman, and Harry First eds., Oxford University Press 2001) [hereinafter Benkler, A Political Economy of the Public Domain].

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

[198] See Hesse and Ostrom, Introduction, supra note 100, at 11; Rights to Nature: Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment (Susan S. Hanna, Carl Folke, and Karl-Gören Mäler eds., Island Press 1996); Making the Commons Work: Theory, Practice and Policy (Daniel W. Bromley, David Feeny et al. eds., ICS Press 1992); Commons without Tragedy: The Social Ecology of Lana Tenure and Democracy (Robert V. Andelson ed., Center for Incentive Taxation 1991); David Feeny, Fikret Berkes, Bonnie J. McCay, and James M. Acheson, The Tragedy of the Commons: Twenty-Two Years Later, 18 Human Ecology 1 (1990).

[199] See Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711 (1986).

[200] Lawrence Lessig, Re-crafting a Public Domain, 18 Yale J. L. & Human. 56, 64 (2006) [hereinafter Lessig, Re-crafting a Public Domain].

[201] See Lewis Hyde, Cultural Commons, Cultural Commons Project Description, html.

[202] See Brett M. Frischmann and Mark A. Lemley, Spillovers, 107 Colum. L. Rev. 257 (2007).

[203] See Charles Leadbeater, We-Think: Mass Innovation, Not Mass Production (Profile Books 2009); Clay Shirky, Here Comes Everybody: The Power Of Organizing Without Organizations 240-253 (Penguin Press 2008); Don Tapscott and Anthony D. Williams, Wikinomics: How Mass Collaboration Changes Everything (Atlantic Books 2008); Benkler, The Wealth of Networks, supra note 95, at 36-37; Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford U. Press 2006); see also Madison, Fisherman, and Strandburg, Constructing Commons, supra note 102, at 670 (arguing, however, that an amorphous idea of community production could become a new one-size-fits-all panacea approach in rivalry with privatization)

[204] See Heller, The Tragedy Of The Anticommons, supra note 123.

[205] See Michael Heller, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, And Costs Lives 2 (Basic Books 2008);

[206] See Michael A. Heller and Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998); see also Merges, A New Dynamism in the Public Domain, supra note 122, at 186-191.

[207] See Paul A. David, New Moves in 'Legal Jujitsu' to Combat the Anti-commons – Mitigating IPR Constraints on Innovation by a 'Bottom-up' Approach to Systemic Institutional Reform, paper presented at the 1st COMMUNIA Conference (June 30, 2008).

[208] See Joost Smiers And Marieke Van Schijndel, Imagine There Is No Copyright And No Cultural Conglomerates Too (Institute of Network Culture 2009); Joost Smiers and Marieke Van Schijndel, Imagining a World Without Copyright: the Market and Temporary Protection, a Better Alternative for Artists and Public Domain, in Copyright and Other Fairy Tales: Hans Christian Andersen and the Commodification of Creativity 129 (Helle Porsdam ed., Edward Elgar Publishing Ltd. 2006).

[209] Fiona Macmillan, Copyright’s Commodification of Creativity, at 18, University of London, London, 2003,

[210] See Fiona Macmillan, Commodification and Cultural Ownership, in Copyright And Free Speech: Comparative And International Analyses 44-48, 52-62 (Jonathan Griffiths and Uma Suthersanen eds., Oxford University Press 2003) [hereinafter Macmillan, Commodification and Cultural Ownership].

[211] Id., at 62.

[212] See Statute of Anne, 1709, 8 Ann., c. 19 (Eng.)

[213] See Anna Vuopala, Assessment of the Orphan Works Issue and Cost for Rights Clearance 10 (May 2010) (report prepared for the European Commission, DG Information Society and Media, Unit E4, Access to Information) [hereinafter Vuopala, Orphan Works and Rights Clearance].

[214] See, e.g., Paul A. David and Rubin, Restricting Access to Books on the Internet, supra note 174, at 28-31.

[215] See Proposal for a European Parliament and of the Council Directive Amending Directive 2006/116/EC on the Term of Protection of Copyright and Related Rights, COM (2008) 464 final (July 16, 2008), available at

[216] Hal R. Varian, Copyright Term Extension and Orphan Works, 15 Industrial and Corporate Change 965, 968 (2006); see also Natali Helberger, Nicole Dufft, Stef van Gompel and P. Bernt Hugenholtz, Never Forever: Why Extending the Term of Protection for Sound Recordings is a Bad Idea, Eur. Intel. Prop. Rev. 174 (2008); P. Bernt Hugenholtz et al., The Recasting of Copyright & Related Rights for the Knowledge Economy 83-137  (November 2006) (report to the European Commission, DG Internal Market), available at ons/other/IViR_Recast_Final_ Report_2006.pdf [putting forward several legal, economic, and competition argument against the extension of neighbouring rights].

[217] Hinton v Donaldson, Mor 8307 (1773) (Lord Kames); see also Iain G. Mitchell, Back to the Future: Hinton v Donaldson, Wood and Meurose (Court of Session, Scotland, 28th July, 1773), 1 IFOSS L. Rev. 111 (2009)

[218] See Heald, Property Rights and the Efficient Exploitation of Copyrighted Works, supra note 177, at 78-91.

[219] Id., at 92-98.

[220] Dusollier, Scoping Study On Copyright and the Public Domain, supra note 76, at 11.

[221] See European Commission Staff Working Paper on Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works, SEC (2001) 619 (11 April 2001), available at doc_en.pdf; European Commission Staff Working Document, Annex to the Communication from the Commission ‘i2010: Digital Libraries’, Questions for Online Consultation, SEC (2005) 1195 (September 30, 2005), available at

[222] See Vuopala, Orphan Works and Rights Clearance, supra note 275, at  4.

[223] British Library, Intellectual Property:  A Balance - The British Library Manifesto (September 2006) uk/news/pdf/ipmanifesto.pdf.

[224] See Naomi Korn, In from the Cold: An Assessment of the Scope of ‘Orphan Works’ and its Impact on the Delivery of Services to the Public (June 9, 2009) (report prepared for Strategic Content Alliance and Collections Trust), available at

[225] See Andrew Gowers, Gowers Review of Intellectual Property (HM Treasury, November 2006), available at [hereinafter Gowers Review]

[226] See Copyright, Orphan Works, The Importance of Orphan Work Legislation,; see also The Register of Copyrights, Report on Orphan Works 203 (2006), available at orphan-report-full.pdf

[227] Id., at 5, 35-42.

[228] See Andrew Gowers, Gowers Review of Intellectual Property 65 (HM Treasury, November 2006), available at htm (noting that the inability of the British Library and the other libraries and archives to make archive copies of sound recordings and films even for preservation “raises real concerns for the protection of cultural heritage”); Brief of Arnold P. Lutzker for the American Library Association et al., as Amici Curiae Supporting Petitioner, Eldred et al. v. Ashcroft,  537 US 186 (2003) (No. 01-618) (reporting that a large amount of early films in the United States are now forever lost after being forgotten for decades in dusty vaults.)

[229] Hugenholtz et al., The Recasting of Copyright , supra note 278, at 164-166.

[230] Varian, Copyright Term Extension and Orphan Works, supra note 278, at 965.

[231] Vuopala, Orphan Works and Rights Clearance, supra note 275, at 6.

[232] Stef van Gompel and P. Bernt Hugenholtz, The Orphan Works Problem: The Copyright Conundrum of Digitizing Large-Scale Audiovisual Archives, and How to Solve it, Popular Communication - The International Journal of Media and Culture 61, 71 (2010); see also Mireille Van Eechoud, P. Bernt Hugenholtz, Lucie Guibault, Stef van Gompel, Natali Helberger, Harmonizing European Copyright Law: The Challenges of Better Lawmaking 263-294 (Kluwer Law International 2009) [hereinafter Eechoud et al, Harmonizing European Copyright Law]; Stef van Gompel, Unlocking the Potential of Pre-Existing Content: How to Address the Issue of Orphan Works in Europe?, 38 IIC Int’l Rev. Intel. Prop. Comp. L. 669 (2007); Ricolfi, Copyright Policies, supra note 220, at 5-7. Hugenholtz et al., The Recasting of Copyright, supra note 278, at 159-195.

[233] Commission Communication on Copyright In The Knowledge Economy, at 5-6, COM (2009) 532 final (October 19, 2009), available at

[234] See, e.g., Commission Communication, i2010: Digital Libraries, COM (2005) 465 final (September 30, 2005), available at

[235] Commission Recommendation 2006/585/EC on the Digitisation and Online Accessibility of Cultural Material and Digital Preservation, (2006 O.J. (L 237) 28 (August 31, 2006).

[236] See i2010 European Digital Libraries Initiative, High level Expert Group, Copyright Subgroup, Report on Digital Preservation, Orphan works and Out-of-Print Works. Selected Implementation Issues (April 18, 2008), available at

[237] See i2010 European Digital Libraries Initiative, Public Private Partnership Subgroup, Final Report on Public Private Partnerships for the Digitisation and Online Accessibility of Europe's Cultural Heritage (May 2008), available at activities/digital_libraries/doc/hleg/reports/ppp/ppp_final.pdf.

[238] Neelie Kroes, European Commission Vice-President for the Digital Agenda, A Digital World of Opportunities, speech delivered at the Forum d'Avignon - Les Rencontres Internationales de la Culture, de l’Économie et des Medias, Avignon, France, SPEECH/10/619 (November 5, 2010), available at reference=SPEECH/10/619&format=HTML&aged=0&language=EN&guiLanguage=en.

[239] See Neil W. Netanel, Why Has Copyright Expanded: Analysis and Critique, in 6 New Directions In Copyright Law 16 (Fiona Macmillan ed., Edward Elgar 2008), available at [hereinafter Netanel, Why Has Copyright Expanded].

[240] Mark Davison, Database Protection: The Commodification of Information, in The Future of the Public Domain: Identifying the Commons In Information Law 167-189 (Lucie Guibault and P. Bernt Hugenholtz eds., Kluwer Law International 2006).

[241] See Macmillan, Commodification and Cultural Ownership, supra note 272, at 43 (mentioning Artt. 11 and 14(4) of the TRIPs Agreement, which include rental rights in relation to computer programs, films, and phonograms, Art. 7 of the WIPO Copyright Treaty 1996 and Artt. 9 and 13 of the WIPO Performances and Phonograms Treaty 1996).

[242] For an account of copyright industry political influence in the U.S. and worldwide, see Jessica Litman, Digital Copyright  22-69 (Prometheus Books 2001); see also Netanel, Why Has Copyright Expanded, supra note 301, at 3-11.

[243] Fiona Macmillan, Public Interest And The Public Domain In An Era Of Corporate Dominance, in  Intellectual Property Rights: Innovation, Governance And The Institutional Environment 48 (Brigitte Andersen ed., Edward Elgar Publishing 2006) [hereinafter Macmillan, Public Interest And The Public Domain]

[244] Lionel Bently, Copyright and the Death of the Author in Literature and Law, 57 Modern L. Rev. 973, 979 (1994).

[245] Macmillan, Public Interest And The Public Domain, supra note 305, at 62-63.

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

[247] See also Stef van Gompel, Formalities in the digital era: an obstacle or opportunity?, in Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace 395-424 (Lionel Bently, Uma Suthersanen and Paul Torremans eds., Edward Elgar 2010) (arguing that in the pre-digital era, the objections against copyright formalities were real, in the light of the changes caused by the advent of digital technologies, there is now sufficient reason to reconsider subjecting copyright to formalities).

[248] Berne Convention, supra note 308, at Art. 6bis (2).

[249] See Discours d’ouverture du Congrès littéraire international de 1878, Paris, available at lire/oeuvre1923-page5.html#page, as cited in Guibault, Wrapping Information in Contract, supra note 70, at 89.

[250] See Benabou and Dusollier, Draw Me a Public Domain, supra note 167, at 182-183.

[251] See Joel Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Texas L. Rev. 553 (1998).

[252] See Lessig Lawrence, The Code and Other Laws of Cyberspace 3-60 (Basic Books 1999); William J. Mitchell, City of Bits: Space, Place, and the Infobahn 111 (MIT Press 1995).

[253] See Kamiel J. Koelman, The Public Domain Commodified: Technological Measures and Productive Information Use, in The Future of the Public Domain: Identifying the Commons In Information Law 108-110 (Lucie Guibault and P. Bernt Hugenholtz eds., Kluwer Law International 2006) [hereinafter Koelman, The Public Domain Commodified].

[254] Elkin-Koren, It’s All About Control, supra note 244, at 83-84.

[255] See Jessica Litman, Digital Copyright 122-145 (Prometheus Books 2001); Samuelson, Mapping the Digital Public Domain, supra note 63, at 165; Elkin-Koren, It’s All About Control, supra note 244, at 81.

[256] See WIPO Copyright Treaty, Art. 11 (December 20, 1996), available at trtdocs_wo033.html#P87_12240;

[257] See Digital Millennium Copyright Act of 1998 § 103, 17 U.S.C.A. § 1201 (a) (1) (A) (West 2008), available at http://www.copy [hereinafter DMCA]

[258] See Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, Art. 6(1), 2001 O.J. (L 167) 10, 17 (May 22, 2001), available at rv/LexUriServ. do?uri=OJ:L:2001:167:0010:0019:EN:PDF [hereinafter Directive 2001/29/EC].

[259] Id., at Art. 6 (2); DMCA, supra note 319, at § 1201 (a) (2) and (b).

[260] Id., at .

[261] See Fred Von Lohmann, Unintended Consequences: Twelve Years under the DMCA (Electronic Frontier Foundation February 2010), available at

[262] See Boyle, The Public Domain, supra note 91, at 104; Samuelson, Mapping the Digital Public Domain, supra note 63, at 161.

[263] See Lessig, Re-crafting a Public Domain, supra note 262, at 61-64;

[264] Id., at 62.

[265] See Lucie Guibault et al., Study on the Implementation and Effect in Member States' Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society 102-133 (February 2007) (report prepared for the European Commission, DG Internal Market, ETD/2005/IM/D1/91), available at 2007.pdf (discussing the relation between limitation and TPMs) [hereinafter Guibault et al., Study on Directive 2001/29/EC]; see also Mireille Van Eechoud, P. Bernt Hugenholtz, Lucie Guibault, Stef Van Gompel, Natali Helberger, Harmonizing European Copyright Law The Challenges Of Better Lawmaking 131-179 (Kluwer Law International 2009).

[266] See Koelman, The Public Domain Commodified, supra note 315, at 118.

[267] See Boyle, The Public Domain, supra note 91, at 83-85; Netanel, Copyright’s Paradox, supra note 238, at 66-71.

[268] See Guibault et al., Study on Directive 2001/29/EC, supra note 327, at 96 (mentioning Australia, Canada, Switzerland and Japan, only for copy control mechanisms, among the countries requiring that the acts of circumvention results in copyright infringement for the prohibition to apply).

[269] Directive 2001/29/EC, supra note 320, at Art. 6 (4).

[270] Guibault et al., Study on Directive 2001/29/EC, supra note 327, at 106; see also Nora Braun, The Interface Between The Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and the European Community, 25 Eur. Intel. Prop. Rev. 496, 499 (2003).

[271] See Common Position No. 48/2000 of 28 September 2000 adopted by the Council, with a view to adopting a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, 2000 O.J. (C 344) 01, 19 (December 1, 2000), available at; see also Koelman, The Public Domain Commodified, supra note 315, at 108-109, n.10.

[272] Directive 2001/29/EC, supra note 320, at Art. 6 (4), par. 4

[273] Guibault, Evaluating Directive 2001/29/EC, supra note 158, at 11.

[274] See Anti-Counterfeiting Trade Agreement (ACTA),

[275] See Opinion of European Academics on Anti-Counterfeiting Trade Agreement, at 6, available at

[276] Lessig, Re-crafting a Public Domain, supra note 262, at 63.

[277] Id., at 64.

[278] Id., at 63-64.

[279] See Guibault, Wrapping Information in Contract, supra note 70, at 87-104; Lucie Guibault, Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (Kluwer Law International 2002) [hereinafter Guibault, Copyright Limitations and Contracts]; Loren Lydia Pallas, Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse, 30 Ohio N. U. L. Rev. (2004); Samuelson, Mapping the Digital Public Domain, supra note 63, at 155-158, 163; P. Bernt Hugenholtz, Copyright, Contract and Code: What Will Remain of the Public Domain?, 26 Brook. J. Int’l L. 77 (2000); Niva  Elkin-Koren,  Copyright  Policy and  the  Limits of Freedom of  Contract,  12 Berkeley Tech.  L. J.  93 (1997).

[280] See Guibault, Evaluating Directive 2001/29/EC, supra note 158, at 13.

[281] Id., at 12.

[282] See Koelman, The Public Domain Commodified, supra note 315, at 110-111.

[283] Guibault, Evaluating Directive 2001/29/EC, supra note 158, at 4.

[284] See Guibault, Wrapping Information in Contract, supra note 70, at 104.

[285] Id., at 94-97.

[286] Id., at 98.

[287] See ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Circ. 1996); see also Samuelson, Mapping the Digital Public Domain, supra note 63, at 156-157; Maureen O'Rourke, Copyright Preemption After the ProCD Case: A Market-Based Approach, 12 Berkeley  Tech.  L. J.  53 (1997).

[288] See Directive 2001/29/EC, supra note 320, at art. 6 (1).

[289] See Koelman, The Public Domain Commodified, supra note 315, at 110.

[290] Id., art. 6 (3).

[291] Id., art. 6 (2).

[292] Guibault, Wrapping Information in Contract, supra note 70, at 104.

[293] Koelman, The Public Domain Commodified, supra note 315, at 1118-119.

[294]  Tacitus, 1 The Histories § 1 (A.D. 109) (“rara temporum felicitate ubi sentire quae velis et quae sentias dicere licet” said Tacitus, referring to the reigns of Nerva and Trajan); see also Lange, Reimagining the Public Domain, supra note 75, at 475 (employing the same quote when discussing public domain, citizenship and freedom of expression).

[295] Birnhack, More or Better?, supra note 78, at 62.

[296] Id.

[297] See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 US 539, 558 (1985).

[298] See generally Lange David & Powell Jefferson H., No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford Law Books 2008); Boyle, The Public Domain, supra note 91, at 89-110; Netanel, Copyright’s Paradox, supra note 238; Kembrew McLeod, Freedom of Expression: Resistance and Repression in the Age of Intellectual Property (University of Minnesota Press 2007); Yochai Benkler, Through the Looking Glass - Alice and Constitutional Foundations of the Public Domain, 66 J. Law & Contemp. Probs. 173 (2003); Zimmerman, supra note 85, at 370-375; Macmillan, Commodification and Cultural Ownership, supra note 272, at 37-41, 52-62.

[299] See generally Michael Birnhack, Global Copyright, Local Speech, 24 Cardozo Arts & Ent. L. J. 491 (2006) [hereinafter Birnhack, Global Copyright, Local Speech]; Copyright And Free Speech: Comparative And International Analyses (Jonathan Griffiths and Uma Suthersanen eds., Oxford University Press 2003); Pamela Samuelson, Copyright and Freedom of Expression in Historical Perspective, 10 J. Intell. Prop. L. 319 (2003);

[300] See, e.g., Rebecca L. Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L. J. 535 (2004)

[301] See Birnhack, Global Copyright, Local Speech, supra note 363, at 527-530, 547.

[302] See Christophe Geiger, “Constitutionalising" Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union, 37 Int’l Rev. Intell. Prop. Comp. L. 381 (2006); Bernt P. Hugenholtz, Copyright and Freedom of Expression in Europe, in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society 343-363 (Rochelle C. Dreyfuss, Diane Leenheer Zimmerman & Harry First. eds., Oxford Univ. Press, 2001); see also Helle Porsdam, On European Narratives of Human Rights and their Possible Implications for Copyright, in 6 New Directions in Copyright Law 346-349 (Fiona Macmillan ed., Edward Elgar Publishing 2007).

[303] Tushnet, Domain and Forum, supra note 85, at 598.

[304] Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property, 69 Chicago-Kent L. Rev. 842, 885 (1993).

[305] Benkler, Free as the Air to Common Use, supra note 83, at 393; see also Christopher Yoo, Copyright and Democracy: A Cautionary Note, 53 Vand. L. Rev. 1933, 1935-1952 (2000); Neil W. Netanel, Market Hierarchy And Copyright In Our System Of Free Expression, 53 Vand. L. Rev. 1879 (2000); Neil W. Netanel, Copyright and Democratic Civil Society, 106 Yale L. J. 283 (1996).

[306] Benkler, A Political Economy of the Public Domain, supra note 258, at 273-274.

[307] Id., at 274.

[308] The European Task Force on Culture and Development, In from the margins: A contribution to the debate on Culture and Development in Europe 276 (1997) (report prepared for the Council of Europe), available at dg4/cultureheritage/culture/resources/Publications/InFromTheMargins_EN.pdf; see also World Commission on Culture and Development, Our Creative Diversity (July 1996), available at 055/105586e.pdf.

[309] See e.g. UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, October 20, 2005, CLT-2005, available at SECTIO N=201.html (recognizing in the preamble ““the importance of intellectual property rights in sustaining those involved in cultural creativity”) [hereinafter UNESCO Convention].

[310] Fiona Macmillan, Copyright, the World Trade Organization, and Cultural Self-Determination, in 6 New Directions in Copyright Law 329 (Fiona Macmillan ed., Edward Elgar Publishing 2007) [hereinafter Macmillan, Copyright, the WTO].

[311] Fiona Macmillan, The Dysfunctional Relationship Between Copyright And Cultural Diversity, 27 Quaderns Del Cac 101 (2007); see also Macmillan, Copyright, the WTO, supra note 372, at 313-319; Macmillan, Public Interest And The Public Domain, supra note 305; Fiona Macmillan, The Cruel ©: Copyright and Film, 24 Eur. Intel. Prop. Rev. 483, 488-489 (2002).

[312] See Fiona Mcmillian, The UNESCO Convention as a New Incentive to Protect Cultural Diversity, in Protection of Cultural Diversity from a European and International Perspective 163-192 (Hildegard Schneider and Peter van den Bossche eds., Intersentia, 2008).

[313] Neelie Kroes, European Commission Vice-President for the Digital Agenda, A Digital World of Opportunities, speech delivered at the Forum d'Avignon - Les Rencontres Internationales de la Culture, de l’Économie et des Medias, Avignon, France, SPEECH/10/619 (November 5, 2010), available at reference=SPEECH/10/619&format=HTML&aged=0&language=EN&guiLanguage=en.

[314] See Bruno de Witte, The Value of Cultural Diversity in the European Union, in Protection of Cultural Diversity from a European and International Perspective 219-247 (Hildegard Schneider and Peter van den Bossche eds., Intersentia, 2008);

[315] See Commission Communication, A Digital Agenda for Europe, COM (2010) 245 final (May 19, 2010), at 30, available at [hereinafter Digital Agenda].

[316] Germann Avocats, Implementing the UNESCO Convention of 2005 in the European Union, IP/B/CULT/IC/2009_057 (May 2010) (study prepared for the European Parliament Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Policies, Culture and Education), available at

[317] Id.

[318] Macmillan, Public Interest And The Public Domain, supra note 305, at 49.

[319] See Jerome A. Barron, Access to the Press: A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967) [hereinafter Barron, Access to the Press]; Jerome A. Barron, Access--The Only Choice for the Media?, 48 Tex. L. Rev. 766 (1970); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986); see also Netanel Neil W., New Media in Old Bottles? Barron's Contextual First Amendment and Copyright in the Digital Age, 76 Geo. Wash. L. Rev. 952 (2008), available at

[320] See Barron, Access to the Press, supra note 381, at 1641-1647.

[321] See Fiss, supra note 381, at 1412-1413; Jack M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L. J. 375, 404-412 (1990).

[322] Guy Pessach, Copyright Law as a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities, 76 S. Cal. L. Rev. 1067, 1068 (2003).

[323] See Macmillan, Public Interest And The Public Domain, supra note 305, at 49-52; Macmillan, Commodification and Cultural Ownership, supra note 272, at 44-48.

[324] Ronald V. Bettig, Copyrighting Culture, The Political Economy of Intellectual Property 38 (Westview Press 1996).

[325] Benkler, Free as the Air to Common Use, supra note 83, at 410.

[326] Digital Agenda, supra note 377, at 30.

[327] See Benkler, A Political Economy of the Public Domain, supra note 258, at 272-285 (reviewing in details the effects of intellectual property approaches to organizing information production); see also Benkler, Free as the Air to Common Use, supra note 83, at 400-408.

[328] Benkler, Free as the Air to Common Use, supra note 83, at 410.        

[329] For an account of copyright industry political influence in the U.S. and worldwide, see Jessica Litman, Digital Copyright  22-69 (Prometheus Books 2001); see also Netanel, Why Has Copyright Expanded, supra note 301, at 3-11.

[330] See Mançur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard U. Press 1971) (1965).

[331] See US embassy cables: Italy, the EU and the Anti-Counterfeit Trading Agreement, The Guardian, December 22, 2010,

[332] See Michael Geist, The Implication of the Counterfeiting Trade Agreement, 2010 Intellectual Property Symposium, Duke University Law School, Durham, United States (February 11, 2011).

[333] Alexander Peukert, A European Public Domain Supervisor, Int’l Rev. Intel. Prop. Comp. L. (Forthcoming).

[334] See Jessica Litman, Digital Copyright  (Prometheus Books 2001); Jessica Litman, Real Copyright Reform, 96 Iowa L. Rev. 1 (2010).

[335] Guibault, Evaluating Directive 2001/29/EC, supra note 158, at 10; see also Guibault et al., Study on Directive 2001/29/EC, supra note 327, at 105.

[336] Deazley, Rethinking Copyright, supra note 64, at 131

[337] See Hugenholtz et al., The Recasting of Copyright , supra note 278, at 31-41 .

[338] See Case C-5/08, Infopaq International A/S v Danske Dagblades Forening, 2009 E.C.R. C-220 available at

[339] See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[340] See Guibault, Evaluating Directive 2001/29/EC, supra note 158, at  5-7.

[341] See Directive 2001/29/EC, supra note 320, Art. 5.

[342] See Guibault et al., Study on Directive 2001/29/EC, supra note 327, at 39-59 (discussing also the legislative history of the exception and limitation provisions included in the Directive).