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. At the 2nd COMMUNIA Conference, Bernt Hugenholz referred to this tension as the “paradox of intellectual property,” because intellectual property is a “system that promotes, or at least, aspires to promote knowledge, dissemination, cultural dissemination by restricting it,” by creating temporary monopolies in expressed ideas or in applied invention.^[22]

In Europe the paradox is heightened by the intensity of moral rights. The strength of moral rights, especially the moral right of integrity, conversely weakens the public domain. In Europe, moral rights are inalienable and potentially perpetual. Any copyright expirations, public domain dedications or the 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, which may somehow temper with or modify the perception of the original work, may all trigger the reaction of the author’s estate in perpetuity.

However, digitization and Internet distribution have exacerbated these traditional tensions between copyright protection and the public domain. The misperception of the “Internet threat” has led to a reaction that endangers the public domain. Concurrently, the opportunities that digitization and Internet distribution offer to our society make enclosure and commodification of our information environment even more troublesome. As Paul A. David, key note speaker at the 1st COMMUNIA Conference, noted:

[t]oday, the greater capacity for the dissemination of knowledge, for cultural creativity and for scientific research carried out by means of the enhanced facilities of computer-mediated telecommunication networks, has greatly raised the marginal social losses that are attributable to the restrictions that those adjustments in the copyright law have placed upon the domain of information search and exploitation.^[23]

With large agreement, scholars and the civil society have warned that our information environment is undergoing a process of enclosure. Boyle has talked about a second enclosure movement that it is now enclosing the “commons of the mind.” As for the natural commons, fields, grazing lands, forests, and streams that were enclosed in the sixteenth century in Europe by landowners and the state, relentlessly expanding intellectual property rights are enclosing the intellectual commons and the public domain. Enclosure is promoted by a mix of technology and legislation. According to  Hugenholtz and Lucie Guibault, the public domain is under pressure from the "commodification of information."

[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.^[24] 

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.

However, this digital land grab is the continuation of a well-settled analog trend whose limits and fallacies have already been shown and rebutted. In the past, law and economics scholars have launched a crusade to expose the evil of the commons, the evil of not propertizing. A much quoted article written by Garret Hardin in 1968 termed the evil of not propertizing as the tragedy of the commons.^[25] Hardin identified the tragedy of the commons in the environmental dysfunctions of overuse and underinvestment found in the absence of a private property regime. He made it clear that any commons open to all, ungoverned by custom or law, will eventually collapse. The fear of the tragedy of the commons propelled the idea that more property rights will necessarily lead to the production of more information together with the enhancement of its diversity. In this perspective, the prevailing assumption is that anything of value within the public domain should be commodified. The recent tremendous expansion of intellectual property rights has been justified by this and similar statements.

To put it bluntly, this statement and the like are wrong. No economic theory of intellectual property and commons management supports the prediction stated. Nobel laureate Elinor Ostrom powerfully advocated the cause of the commons against the mantra of propertization. Her work showed the inaccuracies of Hardin’s ideas and brought attention to the limitations of the tragedy of the commons. Empirical studies by Ostrom and others have shown that common resources can be effectively managed by groups of people under suitable conditions, such as appropriate rules, good conflict-resolution mechanisms, and well-defined group boundaries. Under suitable conditions and proper governance, the tragedy of the commons becomes “the comedy of the commons.”^[26]

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

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.”^[27] The tragedy of the anti-commons lies in the underuse of scarce scientific resources because of excessive intellectual property rights and all of the transaction costs accompanying those rights. David exposed the perverse resource allocation in an anti-commons scenario at the 1st COMMUNIA Conference.^[28] 

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

The timeline of temporal extension of copyright protection shows a steady elongation in all international jurisdictions. From the original protection encompassing a couple of decades, copyright protection has expanded to last for over a century and a half. As an example, today, the oldest work still in copyright in the United Kingdom dates back to 1859.^[29] The Statute of Anne, the first copyright law enacted in England in 1709, provided only for fourteen years of protection, which renewable for a term of an additional 14 years if the author was still alive at the expiration of the first term. This expansionistic course does not appear to be interrupted or reversed and the line between temporary and perpetual protection is blurred. The words of Lord Kames, discussing the booksellers’ request for a perpetual common law right on the printing of books a couple of centuries ago, act as a powerful warning from the past: "[i]n a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals."^[30] 

Today, an extension of the term of protection for performers and sound recordings is under discussion before the European Parliament.^[31] In fact, the extension had already been adopted, but, for procedural reasons under Lisbon, it must be readopted. COMMUNIA is opposing any such re-adoption and asking the European Commission and Parliament to carefully review any previous convincement on the matter. Extending the terms of protection for related rights endangers a valuable public domain, as argued by Stef van Gompel at the 2nd COMMUNIA Workshop.^[32] COMMUNIA Policy Recommendation # 2 asks for the withdrawal of this proposal. In particular, it is challenging the appropriateness of any retroactive extension of the copyright term. 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.

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. Publishers, film makers, museums, libraries, universities, and private citizens worldwide face daily insurmountable hurdles in managing risk and liability when a copyright owner cannot be identified or located. Too often, the sole option left is a silent unconditional surrender to the intricacies of copyright law. Many historically significant and sensitive records will never reach the public. Society at large is being precluded from fostering enhanced understanding.

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. A study from the Institute for Information Law at Amsterdam University (IViR) attributed the  increased interest in the issue of orphan works to the following factors: (1) the expansion of the traditional domain of copyright and related rights; (2) the challenge of clearing the rights of all the works included in derivative works; (3) the transferability of copyright and related rights; and (4) the territorial nature of copyright and related rights.^[33] In Europe the problem is further complicated by the difficulty of determining whether the duration of protection has expired. As mentioned earlier, the complexities related to copyright term extensions, such as war extensions, blur the contours of the public domain, thereby making more uncertain and costly any attempt to clear copyrights.

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 unfulfilled potentials of digitization projects worsen the cultural outrage over orphan works in terms of loss of opportunities and value that may be extracted from the public domain. The challenges of digitizing works today were widely investigated at the 6th COMMUNIA Workshop. The European institutions are also aware of the potential loss of social and economic value if the orphan works problem remains unsolved. As the European Commission noted, “there is a risk that a significant portion of orphan works cannot be incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana or similar projects.”^[34] COMMUNIA policy Recommendation # 9 urges a solution to the orphan works problem.

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

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

There is, finally, an additional dimension of the process of copyright expansion. Traditionally, the public domain was the default rule of our system of creativity, and copyright was the exception. The abolition of formalities changed it all. As a consequence of the international abolition of formalities enclosed in Article 5(2) of the Berne Convention, copyright was declared the default, and public domain was the exception. 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.” COMMUNIA upholds the position that the abolition of formalities no longer serves the purpose that it was served in the analogue 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. 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. 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.

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

Anti-circumvention provisions have negative effects both on the structural and the functional public domain. COMMUNIA policy Recommendation # 7 pleads for an immediate intervention to protect the public domain against the adverse effect of TPMs. Additionally, COMMUNIA would like European institutions to carefully reconsider the adoption of any stronger protection of TPMs included in the last proposed text of the Anti-Counterfeiting Trade Agreement (ACTA), as also recently requested by several European academics.^[35] The foremost concern with this legal and technological bundle is that TPMs and anti-circumvention provisions can make copyright perpetual. The legally protected encryption, in fact, would continue after the expiration of the copyright term. Because circumventing tools are illegal, users will be incapable of accessing public domain material fenced behind TPMs. In addition, TPMs will affect the public domain by restricting or completely preventing fair dealings, privileged and fair uses. TPMs cannot make any determination of purpose that is necessary to assess whether a use is privileged or not. In the absence of that determination copyright will be technologically enforced regardless of the fairness of the use, the operation of a copyright exception or limitation, or a private use. As per Directive 2001/29/EC, as with many other pieces of international legislation, circumventing a digital right management technology that restricts acts permitted by the law is a civil wrong, and perhaps a crime. Exceptions and limitations, and in particular the limitations included in Article 6(4) of the Directive 2001/29/EC, will be of no avail to exclude infringement of the anti-circumvention provisions.  

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

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 Lucie Guibault has 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.^[36]

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

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, Guibault concluded that “the widespread use of technological protection measures in conjunction with contractual restrictions on the exercise of the privileges recognised by copyright law does affect the free flow of information . . . .” 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.

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.  The public domain is pivotal to our ability to express ourselves freely regardless of the market power of the speakers. Any decrease in the public domain will produce the most relevant repercussions on people with less ability to finance creation and dissemination of their speech. 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.^[37]

As an interrelated issue, copyright expansion and public domain enclosure affect our freedom of expression by impinging on cultural diversity. Historically, cultural diversity has been a fundamental value in the European Union. In addition, since ratification in 2007, all of the relevant European policy decisions should be compelled to conform to the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions’ obligations. In this regard, a recent study on the state of the implementation of the Convention in Europe noted that, while some copyright is necessary, too much copyright is detrimental to diversity of cultural expression. Diversity of cultural expression is particularly threatened by intellectual property rights “in markets that are dominated by big corporations exercising collective power as oligopolies.”^[38] 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, non-infringing creative material out of the market. As a consequence, global media and entertainment oligopolies will impose an homogenizing effect on local culture. Cultural filtering, homogenization and the loss of the public domain have exacerbated the “dysfunctional relationship between copyright and cultural diversity,” as Professor Fiona Macmillan puts it.^[39] 

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.^[40]

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. Any policy intervention should not underestimate the decreased production by organizations using strategies that do not benefit from copyright expansion. 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.”^[41] 

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.

It is worth mentioning that COMMUNIA has also been investigating the problem of the tension between cultural heritage protection laws (CHPLs) and the public domain. In some EU Member States, cultural heritage legislation may impose an additional layer of restrictions over works that are otherwise copyright free. In particular, in some instances, CHPLs may set up a permission system to reproduce cultural resources and monuments. The COMMUNIA Working Group 3 gathered in Istanbul in December 2010 to explore the issue and produce a set of recommendations. The policy options discussed by the group range from the abolition of CHPLs, harmonization of CHPLs across the EU and the gradual transition towards less and more rational restrictions. In particular, the most important conclusion of the meeting was perhaps that CHPLs could be used in order to mark and protect the public domain, if the permission system possibly in place is accompanied by an obligation to mark the work as a public domain work. Policy options and recommendations about cultural heritage and the public domain, as developed by the members of the COMMUNIA Working Group 3, will be released later this year.^[42] 

Together with the more substantial and specific factors troubling the public domain so far described, there are other more generic aspects of the legislative process that should be redressed to better protect and promote the European public domain. Lack of representation of the interest of users and the public, lack of transparency of the legislative process, obscurity of copyright legal provisions, and lack of legal 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. 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. The final outcome has been the implementation of a copyright system that is strongly protectionist and pro-distributors with an overbroad expansion of private property rights followed by a correspondent restriction of public prerogatives and enclosure of the public domain.

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 will augment the unpredictability of the European public domain. As a consequence, users’ prerogatives will be variable and ambiguous, transaction costs will rise, and the efficiency of the European Internal Market will be lowered, therefore undermining the Digital Agenda for Europe (hereinafter “Digital Agenda”) goal of a “vibrant digital single market.” The fundamental drivers of legal uncertainty are obscure laws and a lack of harmonization.

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

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

The diversity of the European legal framework also adds peculiar complexity to the issue of copyright duration. Despite the fact that efforts have been made toward 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. COMMUNIA Policy Recommendations # 4 calls for further harmonization of rules of copyright duration. Further, lack of harmonization of exceptions and limitations in Europe plays a nefarious role for the public domain, as spelled out by Guibault at the 1st COMMUNIA Conference. Notwithstanding the Information Society Directive aimed at harmonizing exceptions and limitations legal uncertainty still persists. All but one of the limitations in the regime set up by the Information Society Directive was optional, and the regime provides the Member States with ample discretion to decide if and how they implement the limitations.

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. COMMUNIA Policy Recommendation # 3 asks for further harmonization and revision of exceptions and limitations across Europe, together with the introduction of an open fair dealing exception to close any loopholes that predefined exceptions and limitations may have. Europe has the opportunity to acquire a leading international role in the fair use industry, by taking full advantage from the European system of predefined exceptions and limitations, if contrasted with the more unpredictable United States case-by-case fair use model.

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