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Contribution to Book
Draw me a public domain
Copyright Law: A Handbook of Contemporary Research (2007)
  • Severine Dusollier, University of Namur
  • Valérie-Laure Benabou
Abstract
Copyright is forged from pieces of land taken from the public domain. Absence of any restrictions on the products of the mind and of creation is the rule while intellectual property is the exception. Yet intellectual property has constantly expanded over the realm of the public domain. The on-going commodification of the latter has been regularly denounced in scholarship. This article aims at sketching a regime for the public domain that would contain some rules through which it could resist encroachment by private property. It starts from the analysis that the current perception and regime of the public domain in copyright law, or rather its lack of any regime, makes it very vulnerable and unsustainable. Even more, the actual regime and definition of the public domain operates to facilitate its ongoing privatization. Contrary to what the public/private logic suggests, public domain often serves private property and this interdependent relationship is rooted in the history and economics of intellectual property. It is therefore essential to provide a positive definition to the public domain, and not limit it to what is not protected by copyright, by trying to focus on the function of a desirable public domain and to figure out what ‘belonging’ to the public domain actually means. To achieve this goal, we suggest that the public domain has not only to be looked at through the lens of intellectual property, as receptacle of a formerly protected work or as a dead zone of protection, but should be considered on its own, as a positive notion which needs to be defined and protected. On these grounds, a specific regime for the public domain could be set up to answer the following questions: How can this freedom be maintained and the shrinking of the public domain be stopped? Has the public domain to be made legally ‘immune’ from appropriation, and if so, how? How should the ‘non-appropriation’ rule be sustained by a legal regime protecting the public domain? How should the effective accessibility of the public domain be guaranteed? Key principles to achieve such a regime are also developed in the paper.
Keywords
  • public domain,
  • copyright,
  • exceptions,
  • ideas
Publication Date
2007
Editor
P. Torremans
Publisher
Edgar Elgar
Citation Information
Severine Dusollier and Valérie-Laure Benabou. "Draw me a public domain" Copyright Law: A Handbook of Contemporary Research (2007)
Available at: http://works.bepress.com/severine_dusollier/5/