Edited by Dana Beldiman
Chapter 7: A positive status for the public domain
The public domain is generally defined as encompassing intellectual elements that are not protected by copyright or whose protection has lapsed, due to the expiration of the duration for protection. Sometimes the definition is stricter, focusing only on works whose copyright has ended, or broader, welcoming in its ambit uses of works still protected by copyright, but legitimized through the operation of an exception or of a license. When considering the substance of the public domain, one is immediately confronted with the strong rhetoric that has unfolded around that notion. The public domain is a very abstract idea shaped in a very concrete territorial metaphor. The ‘domain’ evokes a particular place, a territory where no intellectual property rights apply, a domain where anybody is free to enter and to help herself. The private domain of intellectual property, characterized by exclusive rights, monopolies, and authorization/prohibition schemes, looks as if it was fenced off from the public domain, as if both domains were contiguous, though separate, as if the domain of commoditized and privatized assets faces the domain of freely available resources, with no connection or relation between them. On one side, there would be the perimeter of intellectual property protections, where copyright exclusive rights would be the sole area for commodification process and action, whereas, on the other and opposite side, the public domain, where the unprotected elements would lie, would be the only place where artistic or scientific creation could take place without infringing the right held by an author.
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