COMMUNIA FINAL REPORT | What is the public domain?

Subtitle: 
A concept of enhanced democracy and globalized shared culture

Defining the boundaries and the inner meaning of the public domain is conducive to the aim of strengthening its protection and its promotion. There are many public domains that change in shape according to the hopes and the agenda they embody. The diversity of the COMMUNIA network has provided an opportunity to internalise this protean nature of the public domain. The outcome has been a comprehensive vision that projects the understanding of the European public domain in a global international dimension. This vision conveys the perception that the public domain is never a definition but instead a statement of purpose, and a project of enhanced democracy, globalised shared culture and reciprocal understanding.

COMMUNIA has attempted to propel a process of definitional re-construction of the public domain in positive and affirmative terms. It envisions the public domain as having a very substantial element of attraction to aggregate social forces devoted to promoting public access to culture and knowledge.

The traditional definition regarded the public domain as a “wasteland of undeserving detritus” and did not “worry about ‘threats’ to this domain any more than [it] would worry about scavengers who go to garbage dumps to look for abandoned property.”[4] This definitional approach has been discarded in the last thirty years. In 1981, David Lange published his seminal work, Recognizing the Public Domain, and departed from the traditional line of investigation of the public domain. Lange suggested that “recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain.”[5] In January 2008, Séverine Dusollier reinstated that idea at the 1st COMMUNIA Workshop by speaking of a “positively defined public domain.”

In legal regimes of intellectual property, the public domain is generally defined in a negative manner, as the resources in which no IP right is vested. This no-rights perspective entails that the actual regime of the public domain does not prevent its ongoing encroachment, but might conversely facilitate it. In order to effectively preserve the public domain, an adequate legal regime should be devised so as to make the commons immune from any legal or factual appropriation, hence setting up a positive definition and regime of the public domain.[6]

The affirmative public domain was a powerfully attractive idea that propelled the “public domain project.” Many authors in Europe and elsewhere attempted to define, map, and explain the role of the public domain as an alternative to the commodification of information that threatened creativity. This ongoing public domain project offers many definitions that attempt to construe the public domain positively. A positive, affirmative definition of the public domain is a political statement, the endorsement of a cause.

As the Public Domain Manifesto puts it, the public domain is the “cultural material that can be used without restriction . . . ,” and which includes a structural core and a functional portion. The structural core encompasses the “works of authorship where the copyright protection has expired” and the “essential commons of information that is not covered by copyright.” The functional portion of the public domain consists of the “works that are voluntarily shared by their rights holders” and “the user prerogatives created by exceptions and limitations to copyright, fair use and fair dealing.”[7] 

However, notwithstanding many complementing definitional approaches, consistency is to be found in the common idea that the public domain is the material that composes our cultural heritage. The public domain envisioned by COMMUNIA becomes the “place we quarry the building blocks of our culture,” as put by James Boyle, the co-director of the Duke Center for the Study of the Public Domain, and a member of the COMMUNIA network.[8] At the same time, the public domain is the building itself. It is, in the end, the majority, if not the entirety, of our culture. Therefore, the public domain must be free for all to use, and copyright expansionism is a welfare loss against which society at large must be guarded.

The modern discourse on the public domain owes much to the legal analysis of the governance of the commons, that is, natural resources used by many individuals in common. Commons and public domain are in fact two different things: the public domain is free from property rights and control whilst a commons may be restrictive. However, this kind of control is different than under traditional property regimes because no permission or authorization is required to enjoy the resource. These resources are protected by a liability rule rather than a property rule. Free Software, Open Source Software and Creative Commons are examples of intellectual commons.

Although public domain and commons are diverse concepts, since the origin of the public domain discourse, the environmental metaphor has been largely used to refer to the cultural public domain. Therefore, the traditional environmental conception of the commons was ported to the cultural domain and applied to intellectual property policy issues. Under this conceptual scheme, the individual, legal, and market based control of the property regime is juxtaposed to the collective and informal controls of the well-run commons. Environmental and intellectual property scholars started to look at knowledge as a commons – a shared resource, as defined by the Nobel laureate Elinor Ostrom. The environmental metaphor has propelled what can be termed as a cultural environmentalism.  

In the last decade, we have witnessed the emergence of a new understanding of the public domain in terms of affirmative protection and the sustainable development of a common pool of resources, especially in the digitally networked environment. This enhanced understanding of the value of the public domain has been undergoing a multi-faceted evolution with academic, civic, institutional and more practical ramifications. Today, the Institute for Information Law at Amsterdam University, the Berkman Center for Internet and Society at Harvard, the Cambridge Centre for Intellectual Property and Information Law, the Nexa Center for Internet and Society at the Politecnico of Turin, the Haifa Center of Law and Technology, the Duke Center for the Study of the Public Domain, the Stanford Center for Internet and Society and a variety of other academic centers devote a substantial amount of their time to investigate the proper balance between intellectual property and the public domain, as detailed by the COMMUNIA Survey of Existing Public Domain Competence Centers delivered to the European Commission on September 30, 2009. Several advocacy groups are committed to the preservation of the public domain and the promotion of a shared commons of knowledge, including among many others the Open Knowledge Foundation, Open Rights Group, LaQuadratureduNet, Knowledge Ecology International, the Access to Knowledge (A2K) movement, Public Knowledge, and the Electronic Frontier Foundation. Civil advocacy of the public domain and access to knowledge has also been followed by several institutional variants, such as the “Development Agenda” at the World Intellectual Property Organization (WIPO) setting specific policy recommendations to protect and strengthen the public domain. The WIPO efforts for the promotion of the public domain were presented at the 5th COMMUNIA Workshop in London and 7th COMMUNIA Workshop in Luxembourg.[9] In addition, developments in commons theory have been coupled by efforts to turn theory into practice. For example, Creative Commons and the free and open-source software movement have created a commons through private agreement and technological implementation. Again, private firms in the biotechnological and software fields, have decided to forgo property rights to reduce transaction costs. The issue of voluntary sharing, private ordering and contractually constructed commons was widely investigated at the 1st and 2nd COMMUNIA Conference.

The emergence and growth of an environmental movement for the public domain and, in particular, the digital public domain, is morphing the public domain into the commons. The public domain is our cultural commons: it is like our air, water, and forests. We must look at it as a shared resource that cannot be commodified. As much as water, knowledge cannot be constructed mainly as a profitable commodity, as recently argued by Stefano Rodotà, one of the members of the COMMUNIA Advisory Committee.[10] As for the natural environment, the public domain and the cultural commons that it embodies need to enjoy a sustainable development. As with our natural environment, the need to promote a “balanced and sustainable development” of our cultural environment as a fundamental right that is rooted in the Charter of Fundamental Rights of the European Union. As we will detail later in this Report, overreaching property theory and overly protective copyright law disrupt the delicate tension between access and protection. Unsustainable cultural development, enclosure and commodification of our cultural commons will produce cultural catastrophes. As unsustainable environmental development has polluted our air, contaminated our water, mutilated our forests, and disfigured our natural landscape, unsustainable cultural development will outrage and corrupt our cultural heritage and information landscape. A cultural development neglectful of the public domain, if not redressed, will negatively affect society at large in consequence of the loss of economic and social value that may be extracted from the public domain, especially from the digital public domain.


[4] Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, 66 Law & Contemp. Prob. 147, 147 (2003) [hereinafter Samuelson, Mapping the Digital Public Domain].

[5] David Lange, Recognizing The Public Domain, 44 Law & Contemp. Probs. 147, 147 (1981).

[6] Séverine Dusollier, Towards a Legal Infrastructure for the Public Domain, speech delivered at the 1st COMMUNIA Workshop, Turin, Italy (January 18, 2008) (please note that any of the materials cited in this Report and Annexes related to proceedings of COMMUNIA meetings can be found at http://www.communia-project.eu).

[7] See The Public Domain Manifesto (produced within the context of COMMUNIA, the European thematic network on the digital public domain), http://publicdomainmanifesto.org and infra Annex V.

[8] James Boyle, The Public Domain: Enclosing the Commons of the Mind 40 (Yale University Press 2009).

[9] See Richard Owens, WIPO and Access to Content: The Development Agenda and the Public Domain, presentation delivered at the 5th COMMUNIA Workshop, London, United Kingdom (March 27, 2009); Richard Owens, WIPO Project on Intellectual Property and the Public Domain, presentation delivered at the 7th COMMUNIA Workshop, Luxembourg (February 1, 2010).

[10] See Stefano Rodotà, Se il Mondo Perde il Senso del Bene Comune, Repubblica, August 10, 2010, available at http://ricerca.repubblica.it/repubblica/archivio/repubblica/2010/08/10/se-il-mondo-perde-il-senso-del.html.