The Digital Public Domain: Relevance and Regulation

Beyond the wall between what is protected… and what is not. The question was raised in Berlin.

The 1st Berlin Symposium on Internet and Society was held last week (October 25-28, 2011), on the occasion of the inauguration of the Humboldt University’s new multi-disciplinary Research Institute on Internet and Society (IIC, Institut für Internet and Gesellschaft). The event gathered many of the most prominent worldwide experts on Internet issues, accross academic fields and professional horizons.

During the opening session, Prof. Jeanette Hofmann insisted on the fact that research on internet and society has to reach areas beyond “intellectual property” and the usual categories delimitating the way we experience and think the Internet. In that respect, she cited the Public Domain as something that should deserve further study and expertise. This should pave the way to future exciting research projects, which COMMUNIA is keen to follow closely.

The conference proposed many workshops inviting participants to challenge the way we think the digital world (see the sessions programme). One of them was dedicated to The Digital Public Domain: Relevance and Regulation. Based on the excellent paper drafted and presented by Leonhard Dobusch, the discussion was led by Martin Kretschmer, Juan Carlos de Martin and Felix Stadler, and then open with the workshop participants (among whom Prof. Niva Elkin-Noren, Prof. Ingrid Schneider…).

PD panel at bis 11
Pink sunset on the Spree behind the Public Domain session speakers from left to right Martin Kretschmer, Leonhard Dobusch, Felix Stadler, Juan Carlos De Martin

COMMUNIA was in the room. We felt at home and refreshed.

What is (in) the “Public Domain”? Trying for an empirical mapping.

In his paper, Leonhard Dobusch traces the history of the concept of “Public Domain”. Interestingly, the notion of Public Domain within the copyright law system was born in the US. In Germany, the concept is covered by a terminology that does not bear the same meaning (“Gemeinfreiheit”). Dobusch’s paper thus provides for interesting elements as to the historical and cultural scope of the very concept of Public Domain.

It is high time for policy and law makers to propose a positive definition of the Public Domain within the IP regulatory framework. The Public Domain is originally negatively defined, as what is not protected, as the amount of “derivative things”, whereas it shall include positive rights, such as the right to use, to exclude, to use, to transfer and even to waste…

In this definition task, an empirical mapping of the digital public domain, a thorough assessment of what the public domain means in reality for creators, users and all stakeholders, are necessary.

This search for a “positive” definition of the Public Domain implies a discourse going beyond the usual – and short-sighted – “no rights” area. It should also induce the effort to look at the public domain as a wide and rich area not only containing content “by default”, as for instance free licenses. The public domain is more complex, and offers much more opportunities (see the WIPO Scoping Study on Copyright and Related Rights and the Public Domain written by Prof. Séverine Dusollier).

The resources offered by the public domain are questioning the IP regulatory framework in an unprecedented way. This should be seen by law makers as a chance to rethink copyright law (and maybe also patent law) towards the widely claimed better balance between rights holders and the public interest.

For researchers and social scientists, the question about how the definition and mapping effort shall be undertaken is arising. Would categorization be relevant without risking to limit the scope of the Public Domain? The public domain is a changing object, with frontiers depending on the diverse privatization initiatives… To a certain extent, the IP rights are reflected through the public domain, acting as a kind of mirror of copyright.

The empirical mapping of the public domain is necessary, but to what extent? How far is it able to go? The issue is to compare the different shades of gray, thus leaving some space for what cannot be clearly defined. A positive public domain may not necessarily consist in (positive) “rights”, but can also encompass diverse practices. The scientific stake is here to identify sequencies of commodification and of decommodification.

Does the public domain have to be “mapped” under a unified term? As a matter of fact, the public domain is a concept that already brings together many different actors and builds advocacy coalitions. The public domain is the result of diverse political pressures, and is not necessarily the outcome of clearly defined policy objectives.

The question is: what do we want to achieve by trying to define the public domain? If innovation shall lead this effort, then specific criteria should be proposed. Or maybe we shall go back to IP rights as the main reference, and try to limit the scope of rights from within their own regime? These questions deserve some discussion amongst social scientists.

Mirror in the sky
Building the Public Domain as a “mirror”? Reflecting surface on the terrace of the nhow Berlin Hotel, venue of the conference

How shall the Public Domain be regulated?

The societal and legal relevance of the public domain is obvious, notably as a pre-condition determining copyright and authorship. What is in the public domain shall not be subject to private protection.

The empirical mapping of the public domain should help identifying more precisely the economic relevance of the public domain. The regulation framework applying to the public domain can produce some direct effects on the economy, and more particularly on innovation. As a matter of fact, businesses can suffer genuine legal uncertainty when it comes to identify what is protected by IP rights and what is not. The positive economic impact of content being in the public domain is sometimes already acknowledged in practice. For instance, some patent rights holders can decide to donate patentable inventions in order to create a pre-competitive market. Like the “adjustment process” (Schumpeter), the utility of the public domain to improve competition should be demonstrated, although the question about how this aspect should be echoed within legislation remains.

The surrounding global IP policy agenda is also influencing the debate. The ongoing copyright enforcement initiatives conducted at national and international level, such as the Anti-Counterfeiting Trade Agreement (ACTA), are sending messages of intensification of IP protection to society. This can only foster further thinking about alternatives to counterbalance the one-sided “more protection” discourse. The promotion of a digital public domain is part of this reflection.

Prof. Alexander Peukert (Frankfurt University) proposed the creation of an Observatory on the Public Domain (paper available on SSRN). Perhaps the lawmaking solution would be the surveillance of the implementation of public interest principles rather than in positive provisions risking to limit the scope of the public domain?

This sends us back to the “mapping” issue. Does the public domain have to be “mapped” under a unified term? As a matter of fact, the public domain is a concept that already brings together many different actors and builds advocacy coalitions. The public domain is the result of diverse political pressures, and is not necessarily the outcome of clearly defined policy objectives.

The regulation of the public domain raises crucial issues as to the legal environment of information goods we want to shape for the future. Today’s choices will influence society over time. The spatio-temporal metaphor of the “Public Domain” is thus more than relevant… although being more than ever concrete.

During the Symposium, several main issues helping to guide future research have been identified:

  • Mapping the Public Domain Empirically: What Areas of the Public Domain are Most Relevant in Different Fields?
  • Public Domain and Free Speech: How have technological and regulatory changes of the public domain affected democratic dialogue?
  • Public Domain and Innovation: How are public domain material and rights utilized in (inter)organizational innovation practices?
  • Public Domain, Governance and Innovation: Why and how do different forms of public domain governance impact innovative processes?
  • Public Domain and regulation: What are the consequences of interactions between different types of public domain regulation over time?

Mapping the Digital Public Domain
Mapping and sketching the Digital Public Domain (by G.Heinzel):

You can find the Symposium draft papers and minutes on and learn more about the IIC on their beta-website.

A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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