The Future of the Public Domain: Identifying the Commons in Information Law
Kluwer Law International B.V., 2006 M01 1 - 377 pages
The presence of a robust public domain is an essential precondition for cultural, social and economic development and for a healthy democratic process. But the public domain is under pressure as a result of the ongoing march towards an information economy. Items of information, which in the `old economy had little or no economic value, such as factual data, personal data, genetic information and pure ideas, have acquired independent economic value in the current information age, and consequently become the object of property rights making the information a tradable commodity. How and to what extent does the commodification of information affect the free flow of information and the integrity of the public domain? Does the freedom of expression and information, guaranteed inter alia in the European Convention on Human Rights, call for active state intervention to `save the public domain? What means both legal and practical are available or might be conceived to guarantee and foster a robust public domain? These were the main questions that were addressed in a major collaborative research project led by the Institute for Information Law of the University of Amsterdam (IViR) in co-operation with the Tilburg Institute for Law, Technology and Society (TILT) of Tilburg University, and funded by ITeR, the Dutch National Program for Information Technology and Law. Thirteen contributions from academia worldwide make up the present book, addressing the future of the public domain from a different angle. In addition, all authors were invited to reflect upon the notion and role of the public domain in the context of information law and policy. Should this concept be limited to that of a `negative image of (intellectual) property protection, i.e. all publicly available information not subject to a property right, and therefore freely (i.e. gratis) available, or should a broader approach be taken, e.g. all information available from public sources at affordable cost? Should information policies be aimed at maximizing the public domain or optimizing information flows? To what extent are these aims congruent? This book takes a broader, `information law oriented approach towards the question of preserving the public domain, in which a wide range of interrelated legal questions converge. Issues treated in this book include: Economic analysis of the public domain Fundamental rights analysis of the public domain Impact of the application of technological protection measures and contractual restrictions on the public domain The impact of the expansion of copyright, database right and patent rights on the public domain The impact of the commodification of private data, government information, indigenous knowledge on the public domain The capacity of the Open Source and Creative Commons Movements to preserve the integrity of the public domain The Future of the Public Domain is an important work for all those interested or involved in the regulation of the knowledge economy. Legal scholars, academic and research institutions, corporate counsel, lawyers, government policymakers and regulators all these and more will benefit enormously from the thoughtful and incisive discussions presented here.
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Normative Reasons to Map the Public Domain
The Incentives Paradigm and the Normative Analysis of the Public
Some Hidden Assumptions of the Traditional Law and Economics
Property Rights and the Public Domain Revisited
More or Better?
More or Better?
The Public Domain and the Market
Protecting the Domain of Accessible Knowledge
Mapping the International Domain of Accessible Knowledge
Establishing a Property Right in Personal Data
Contractual Freedom Control Rights and the EU Personal Data
The Costs of a Property Rights Approach
Contracts Relating to Public Domain Information
Impact of Contractual Practices on the Public Domain
Control over Information
Freedoms of Expression and Information
A Brief History of an Idea
Toward a Social Theory of Creative
The Public Domain and Commodification Reconsidered
Lessons from the EU and American Processes
Impact of Extending IP Protection to Indigenous Creations
Policy Instruments Affecting Access
Is Open Source an Answer to Commodification?
Empowering Owners to Govern Their Own Works
Proliferation of Licenses and Barriers on Access
About the Contributors
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activities Agreement allow analysis applied approach argued argument artistic authors claims collective commodification concept concerned considered contract copying copyright law costs Court create creation Creative Commons cultural database debate Directive discussion distribution economic effect European example expression fact free speech freedom human ideas important incentives Indigenous individual intellectual property intellectual property rights interests issue knowledge land license limited material matter means measures nature normative open source original owners parties patent personal data political positive possible practice Press prevent principle problem production property rights protection public domain question reason referred regarding regime requires restrictions result rules social society suggested supra note theory traditional University users