A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Paul Torremans
Valérie-Laure Benabou1 and Séverine Dusollier2 ‘Draw me a sheep!’ ... ‘This is only his box. The sheep you asked for is inside.’ (Antoine de Saint Exupéry, The Little Prince) Introduction Like the sheep of the Little Prince, the public domain is presumed to be existing but is actually very hard to draw precisely. It is mostly viewed as a mere box into which the objects once protected by intellectual property, or never liable to its protection, are deemed to be ‘falling’. But no one knows what happens next, after the fall: what becomes of the sheep once it is inside the box? So far, ‘European Intellectual Property’ (if one can consider there is a common body of intellectual property in Europe, whether in legislation or in legal scholarship), has had little impact on issues related to the public domain.3 The question has never been evoked as such during the harmonisation of the field; case-law is lacking; doctrine is only just emerging.4 In contrast, in the United States, the public domain has been a favourite theme for scholarly research and writing in recent years: many have denounced the ‘enclosure of public domain’5 or have pleaded for its defence against undue appropriation.6 Professor at the University of Versailles – Saint-Quentin-en-Yvelines, France. Professor at the University of Namur, Belgium. The hypothesis of a positive status for the public domain that is developed in the present contribution will be specifically limited to its impact on copyright rules for mere material reasons even...
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