COMMUNIA FINAL REPORT | What Can Europe Do for the Public Domain?

New politics to re-define the vision of intellectual production

One of the main goals of the COMMUNIA Network is to provide policy recommendations to strengthen the public domain in Europe. The COMMUNIA Policy Recommendations are detailed in Annex III of this Report. The recommendations included in the Report are principally addressed to the Commission. However, the recommendation portion of the Report has been envisioned as an agenda and stimulus to any other entity - Member States, national libraries, the publishing industry, expert groups, etc. - that may promote or influence public domain related decisions. In addition, an inner integration between public domain projects at the European level and the international level is a goal recommended by COMMUNIA. This may be easily done by strengthening a more qualified presence of the European Union during discussion and negotiations of public domain issues within the WIPO Development Agenda framework.

The COMMUNIA policy recommendations seek to re-define the hierarchy of priorities embedded in the traditional politics of intellectual productions and creativity. Any public policy of creativity should promote the idea that information is a cultural and democratic resource before than a commodity. The agenda of the information society cannot be dictated by commercial interests above and beyond any of the fundamental values that shape our community. This approach would be a myopic understatement of the relevance of information in the information society. Therefore, “intellectual property must find a home in a broader-based information policy, and be a servant, not a master, of the information society.”[50] If Europe is eager to take up a leading role in the digital environment as stated in the i2010 strategy and the Digital Agenda, it is time to depart from the idea that the only paradigm available is a politics of intellectual property. Instead, it is pivotal to develop a global strategy and a new politics of the public domain. To quote again the Public Domain Manifesto, private incentive to create shall naturally follow like exceptions from the rule.

The COMMUNIA proposal for a new politics for the public domain shall encompass the review of the following strategic subject matters:

  1. Term of protection
  2. Copyright harmonization
  3. Exceptions and limitations
  4. Misappropriation of public domain material
  5. Technological protection measures
  6. Registry system
  7. Orphan works
  8. Memory institutions and digitization projects
  9. Open access to research
  10. Public sector information
  11. Alternative remuneration systems and cultural flat rate

A politics for the public domain should (1) redress the many tensions with copyright protection by re-discussing the term of protection, re-empowering exceptions and limitations, harmonizing relevant rules and adapting them to technological change; (2) positively protect the public domain against misappropriation and technological protection measures; (3) propel digitization projects and conservation of the European cultural heritage by solving the orphan works problem and implementing a registry system; (4) open access to research and public sector information; (5) and promote new business models to enhance creativity, including alternative remuneration systems and a cultural flat rate.

A politics of the public domain is needed to protect our intellectual domain as much as a strategy for national security is required to protect our physical home. Lange has argued that we are all citizens of the public domain. The public domain is our country and our home. Enclosure and propertization of the public domain correspond to depriving citizens of their country and homes. Any policy oriented to the enhancement of creativity should be respectful of our citizenship of the public domain and should nourish, protect, and promote the public domain.

A stronger public domain will make Europe stronger and richer. It will help Europe earn a central and crucial place in fostering new creativity. The ability to promote new creativity will allow Europe to appropriate unexplored social and economic value that lies in the digital realm. As a result a stronger public domain and the promotion of open business models will raise income levels across Europe.  

The European advantage in promoting the public domain can be seen from multiple angles. Firstly, much value is still to be extracted from public sector information, if compared to other jurisdictions. Europe is a late entry in the market for public sector information. According to estimates, 7% of the United States GDP is coming from public sector information, whereas only 0.5% of European Union GDP is coming from that source. Several studies have highlighted that a public domain approach to weather, geographical data, and public sector information in general, may yield a substantial long-term value for Europe, running into the tens of billions or hundreds of billions of euros. Open access to public sector information will entail a considerable added value for the European market.

A stronger public domain will also help Europe to achieve its goal of creating a European digital public library. The Europeana platform is up and running. This is the only international project of its kind. Other jurisdictions are in the process of abdicating their public role in developing digital libraries and digitisation projects to private parties. This is not the European vision. Europe values public interest and full public access above all. However, in order not to lag behind private projects, as Google books, and suffer from negative network effects, Europe should strive to build  a digital public library that can fully unlock the riches of digitization to European society at large. To that end, a European digital public library must be capable of including orphan works as well as access to information, sampling, and purchase of copyrighted in-print and out-of-print material.

Open access to scientific and academic publications and new business models, such as alternative remuneration systems and cultural flat rates that favour access and the reuse and remix of information, will be the tools of European cultural growth and enhanced creativity. As discussed at COMMUNIA meetings, networks of open knowledge environments may spread across European academic and public interest institutions. Open access will propel collaborative research and educational opportunities through interactive portals and functions such as wikis, forums, blogs, journals, post publication reviews, repositories and distributed computing.

In a modern, networked Europe, open and free public sector information, together with public domain material, will be the building blocks of our cumulative knowledge and innovation. Exceptions for scientific and academic purposes, open access to academic publications, and easy remix promoted by alternative business models, will empower fast and efficient processing and reuse of other protected material while lowering transaction costs. A pan-European digital library will assure access to and widen the distribution of knowledge with the enhanced tools of computational analysis to foster new research opportunities, such as the digital humanities and genomics. Additionally, a digital public library will push forth the rediscovery of currently unused or inaccessible works, open up the riches of knowledge in formats that are accessible to persons with disabilities and, empower a superior democratic process by favoring access regardless of users’ market power. It will be a perfectly efficient integrated environment for boosting knowledge, research, and follow-up innovation. The goal of the Digital Agenda “to deliver sustainable economic and social benefits from a digital single market based on fast and ultra fast internet and interoperable applications” perfectly supports this vision.[51] COMMUNIA policy recommendations are meant to be one initial, but substantial, step towards making this vision come true.

Additionally, if we look at the traditional market for creativity, we can see that there is a considerable added value for Europe to invest in a lead role in the market for open and public domain business models. Businesses based on legacy intellectual property models have been the strength of the United States economy (Hollywood, Microsoft, Apple, pharmaceutical and biotechnological companies, etc.). Most of the economic value created by those models has been harvested in places other than Europe. Moreover, the dominance of imported cultural paradigms and industries has increasingly propelled pernicious forms of cultural colonization. The negative externalities are immense, especially in terms of impoverishment and the blurring of our cultural diversity. At the same time, an open, decentralized, networked model for creativity would boost cultural diversity at unprecedented levels. The rich linguistic and cultural diversity of Europe, coupled with a net deficiency of European intellectual property industries, makes the European Union the ideal candidate to extract value from an open digital agenda and for successful deployment of cooperative, network driven enterprises. Further, as previously noted, the European Internal Market may become a haven for fair use industries, thanks to the legal certainty of its predefined list of exceptions to copyright, as opposed to the unpredictable case-by-case fair use system of the United States.

If Europe takes control of creativity in the digital environment, Europe will take full control of its future. However, the sole way for Europe to acquire this edge is to promote the immense cultural diversity that lies in the European public domain, as enhanced by the ubiquity and power of propagation of digitization. In order to do so, Europe needs to be innovative, creative, and unafraid to challenge outdated and inefficient business models. Instead, Europe should fully empower the values of public participation, collaboration, and radical innovation. When radical innovation become the new paradigm, the innovator will leapfrog ahead of former leaders who are incapable of changing fast enough, having been trapped by the strength and privileges of the traditional gatekeepers. Radical innovation is coming along regardless of the fact that the “Ancien Régime”, as Nellie Kroes has termed it, may attempt to retard its advent. As Joseph Schumpeter would have put it, to best leapfrog all of its competitors, the European Union should take the opportunity to go full sail out of the Digital Dark Age into the Digital Enlightenment blown by the wind of creative change.

[50] Samuelson, Mapping the digital public domain, supra note 4, at 171-172.

[51] Commission Communication, A Digital Agenda for Europe, at 3, COM (2010) 245 final (May 19, 2010), available at