The Innovation Society and Intellectual Property
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The Innovation Society and Intellectual Property

Edited by Josef Drexl and Anselm Kamperman Sanders

Intellectual property (IP) rights impact innovation in diverse ways. This book critically analyses whether additional rights beyond patents, trademarks and copyrights are needed to promote innovation. Featuring contributions from thought-leaders in the field of IP, this book examines the check and balances that already exist in the IP system to safeguard innovation and questions to what extent existing IP regimes are capable of catering to new paradigms of innovation and creativity.
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Chapter 4: An empirical approach to the public domain

Kris Erickson, Martin Kretschmer and Dinusha Mendis


In this chapter, a new concept of the public domain is developed, focusing on the commercial and noncommercial potential of derivative products. This is needed for an empirical assessment of the value of the public domain. The traditional legal definition of the public domain takes the copyright term as the starting point, and defines the public domain as ‘out of copyright’. We argue that the public domain matters to society and the economy only when it is used. This requires an assessment from a behavioural perspective, covering all uses that are possible without asking for permission. The resulting complexity (subject matter not qualifying for protection, use relating to underlying ideas, copyright exceptions, private ordering through permissive licensing) needs to be filtered by practices in the media and entertainment industries that are understood to enable unrestricted downstream exploitation. We demonstrate how this conceptual approach can be applied to empirical study in the legal setting of the UK.

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