Access to Information and Knowledge
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Access to Information and Knowledge

21st Century Challenges in Intellectual Property and Knowledge Governance

Edited by Dana Beldiman

Massive quantities of information are required to fuel the innovation process in a knowledge-based economy; a requirement that is in tension with intellectual property (IP) laws. Against this backdrop, leading thinkers in the IP arena explore the ‘access challenge’ of the 21st century, framed as the tension between the interest in the free flow of information and the fragmentation of knowledge resulting from strong IP laws.
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Chapter 4: Trademark law and the public domain

Martin Senftleben


To clarify the notion of the public domain in relation to the trademark system, several definitions can be considered that have arisen in scholarly literature from reflections on the meaning and function of the public domain. Providing an overview of different approaches, Professor Samuelson distinguishes between definitions based on the legal status of public domain material, definitions including freedoms to use protected intellectual creations, and definitions focusing on the accessibility of information resources. Legal status definitions, typically, require public domain material to be unencumbered by intellectual property rights. They focus on material that is ineligible for protection, or that no longer enjoys protection after the expiry of protection. As the rationales underlying trademark law necessitate registration to be renewable indefinitely, legal status definitions shed light on a particular problem: the risk of trademark rights being used as a vehicle to re-monopolize material, in respect of which other forms of intellectual property with a limited term of protection have already expired (1.1). Public domain definitions focusing on freedom of use, by contrast, allow the development of a broader concept of the public domain. Instead of asking whether material is free from trademark rights altogether, they pose the question whether material can be used freely. The public domain is thus understood to encompass user freedoms resulting from limitations and exceptions. Following this more flexible approach, public domain material need not be entirely free from trademark rights.

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