I attended a workshop on Friday in Turin, where I was attending the COMMUNIA workshop entitled Technology and the Public Domain. COMMUNIA is a European thematic network funded under the Econtentplus framework, which “aims at becoming a European point of reference for theoretical analysis and strategic policy discussion of existing and emerging issues concerning the public domain in the digital environment“.
The workshop provoked some interesting discussion and had some good papers. My personal highlights were to hear Rishab Ayer Ghosh, who has edited a great book called Code. Also the workshop closed with a presentation by Séverine Dusollier, who impressed me as the most interesting proposal for the commons yet. Her proposal was with regards to the interaction between the public domain and the commons. What is the public domain? It is usually defined in negative terms, it is an absence of rights. It is not in legislations, so in most systems it is not even defined properly. What is the legal regime that applies to it? Her idea is to devise a legal regime for the public domain and make it an access right and a positive right subject to forms of protection, not subject to exclusivity. This has to do with some of copyright basics, such as the idea v expressions dichotomy, and the fact that the threshold of originality in copyright is very low. More and more things can be patented, so the public domain is being eroded. In order for it to survive, we need to express it possitively in the law.
What would be the shape of this positive public domain? That was less clear, and Séverine admitted that she is still thinking about it. She suggested that it could be to take the concept of commons (French Code version). “The use of the common is common to all.”
Quite an intriguing theoretical discussion, but one of those large questions that we should ponder.