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The public domain: Foundations for an Open Culture

TitleThe public domain: Foundations for an Open Culture
Publication TypeBook
Year of Publication2012
Authorsde Rosnay, MDulong, De Martin, JCarlos
PublisherOpen Book Publishers
Publication Languageeng
ISBN NumberDigital (pdf): 978–1-906924–47-8

Uit het voorwoord blz xii-xiv

The public domain is the sovereign space of all citizens of the world. Like the air we breathe, it is free for all people to use, without restriction, no rights reserved. Our public ownership of this domain of knowledge should be understood as a fundamental human right to access our shared knowledge, the use of which is not the result of a grant by any specific government.

In this book, the members of Communia not only articulats this positive conception of our public domain, but also seek to make theEuropean public domain actionable. The book defines the public domain of the European nations and studies the environment in which it operates.Most importantly, it recommends a set of actions to build and make use of that domain as an environment of shared intellectual property and multifaceted cultural heritage.

This book could not come at a more important time. In a little over adecade, technological developments have shifted information production and distribution methods throughout the world. The way we interact with information has changed radically. Names like Wikipedia, Google, YouTube and, increasingly, Europeana speak for themselves. Our public domain is a wellspring of common wealth that provides ways to share that were inconceivable just a short time ago. The potential for growth that a free and accessible public domain presents to a networked Europe, rich in cultural heritage and with such a highly educated populace, is incredible. Yet the immediate implications can be hard to grasp, and policy interventions, quite often driven by special interests, painfully myopic.

Communia bucks this trend. Each recommendation in this book addresses a genuine long-term concern. Their principle objective is to ensure a strong, free and accessible public domain. Any intervention concerning intellectual property laws will have an impact on innovation, education and economic growth for decades into the future. Communia’s proposals offer benefits for innovation, creation and societal enrichment that are not only immediate, they also grow with the passage of time.

These proposals are designed to further propel the creative revolution that has been rising in the networked economy, providing the people of Europe with competitive advantage among developed nations.

Seen from the perspective of users of the public domain, the greatest legal constraint on dissemination of public knowledge is from the threat of copyright litigation. This report recommends the action of developing a digital registry for intellectual works. This is, in my view, the single most important Communia recommendation, and I would like to expand upon it.

A legal system of intellectual property in cyberspace without a digital registry makes no more sense than would a legal system of property without a registry of deeds. From a user’s viewpoint the cyber world offers access to three kinds of works: public domains works, which are legally free to use but it is up to the user to make the legal determination that the work is in the public domain; copyrighted works including information sufficient to allow the user to find the copyright holder and negotiate legal permission to use; and copyrighted works, orphaned by the absence of tracking information and therefore legally unusable. Determining the status of most works is a task beyond the vast majority of people, and can even be challenging to lawyers. For many individuals and institutions, even a 99% certainty that a work is in the public domain is not comforting, if there is still a 1% chance that use of the work could subject them to financially crippling litigation.

This ambiguity regarding the copyright status of countless works, compounded by the threat of crushing litigation if one makes a misjudgment, blights our shared common domain and cries out for a better system. To the extent that we want to have an open and accessible public domain, which is to say, to the extent that we want our public domain to be usable, a reliable digital registry is a necessity.

Communia proposes that each country - helped by Europeana and the great universities of Europe - sets up a registry by legally curating works in their nation’s public domain. Each registry should be backed by legal strength to defend its declarations. Each registry should be linked with other national registries and accessible to all countries. When aggregated, the registries will form a global consortium in support of our public domain in cyberspace, and hence a coherent force to hold litigation at bay.

Cyberspace is structured by law and engineering. Communia seeks to build its national parks. The recommendations of this report are timely, wise and important. They should be carefully studied and then adopted.



The public domain is the sovereign space of all citizens of the world. Like the air we breathe, it is free for all people to use, without restriction, no rights reserved. Our public ownership of this domain of knowledge should be understood as a fundamental human right to access our shared knowledge, the use of which is not the result of a grant by any specific government.

Op de site van Communia staat meer informatie.


Uitgangspunten voor het publieke domein (eisen) zijn:
1. The public domain is the rule, copyright protection is the exception.
2. Copyright protection should last only as long as necessary to achieve a reasonable compromise between protecting and rewarding the author for his intellectual labour and safeguarding the public interest in the dissemination of culture and knowledge.
3. What is in the public domain must remain in the public domain.
4. The lawful user of a digital copy of a public domain work should be free to (re-)use, copy and modify such work.
5. Contracts or technical protection measures that restrict access to and re-use of public domain works must not be enforced.

Aanvullingen op de uitgangspunten (wensen):
1. The voluntary relinquishment of copyright and sharing of protected works are legitimate exercises of copyright exclusivity.
2. Exceptions and limitations to copyright, fair use and fair dealing need to be actively maintained to ensure the effectiveness of the fundamental balance of copyright and the public interest.

Aanbevelingen voor het publieke domein

1. The term of copyright protection should be reduced.
2. Any change to the scope of copyright protection (including any new definition of protectable subject-matter or expansion of exclusive rights) needs to take into account the effects on the public domain.
3. When material is deemed to fall in the structural public domain in its country of origin, the material should be recognized as part of the structural public domain in all other countries of the world.
4. Any false or misleading attempt to misappropriate public domain material must be legally punished.
5. No other intellectual property right must be used to reconstitute exclusivity over public domain material.
6. There must be a practical and effective path to make available "orphan works" and published works that are no longer commercially available (such as out-of-print works) for re-use by society.
7. Cultural heritage institutions should take upon themselves a special role in the effective labeling and preserving of public domain works.
8. There must be no legal obstacles that prevent the voluntary sharing of works or the dedication of works to the public domain.
9. Personal non-commercial uses of protected works must generally be made possible, for which alternative modes of remuneration for the author must be explored.


Citation Key2481