Archive for the 'public domain' Category

Birnhack on Public Domain


Michael Birnhack posted an interesting article on SSRN (forthcoming in THE PUBLIC DOMAIN OF INFORMATION, P. Bernt Hugenholtz & Lucie Guibault, eds., Kluwer Law International, 2005): “More or Better? Shaping the Public Domain“. I’m particularly interested in the way he frames information quality issues in the context of free speech theories and copyright. Here’s the abstract:

One of the most interesting concepts that emerged from the battle over the continuous expansion of copyright law in the last decade is that of the public domain. After the public domain was identified, many authors struggled to define it, map it, locate its constitutional sources and explain its crucial role in copyright law. This important work poses a viable alternative to the pro-property or commodification of information alternative. The public domain project reminds us that at least under an instrumentalist view of copyright law, the public domain is not merely – or rather should not be – an unintended byproduct, or graveyard of copyrighted works, but rather a playground for speech-experiments. Copyright is one of the main tools aimed to create the public domain. This domain is a commons, owned by all and none, a resource which we can use without asking permission. It has a crucial role in personal self-development, learning, experiencing, imagining, speaking with others, creating new works for the benefit of ourselves and wider circles, starting from the immediate interlocutor and up to the entire community. The public domain is the means and the end to promote the progress of science. It is where knowledge is created and where it lies, awaiting new interpretations, new applications and new meanings.

Once we accept that the public domain is not only a negative, we need to figure out how we would like it to be constructed. In this article I would like to add my contribution to the construction of the public domain. In performing this task, we need not ignore the elaborate political thought about freedom of speech. The public domain and free speech are two sides of the same coin. Both notions aim at constructing a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle. In this sense, both are derivatives of a political notion, which is a particular conception of democracy. Accordingly, it is useful to learn from the lessons of the free speech-copyright conflict in our task of constructing the public domain, within copyright law.

What kind of public domain are we interested in? I apply the notions of quality and quantity. These are fuzzy terms. At best, we would like to have a combination of both: we would like to construct a public domain that has more information and more speech of better quality. The article explores how these fuzzy terms interact with various theoretical justifications of both free speech jurisprudence, and then with various theories of copyright law, and concludes with tying all the ends together – examining how we can better construct the public domain.

New Reports by Berkman’s Digital Media Project


The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

  • Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
  • Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
  • Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
  • Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
  • Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
  • Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Part One briefly discusses the basic international copyright framework and provides an overview of three sets of important copyright agreements: The Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the World Intellectual Property Organization (WIPO) treaties.

Part Two discusses the copyright framework in Europe as established by the European Copyright Directive and other European Union (EU) legislation. In this context, the Supplement explores legislative and regulatory developments at the level of both the EU itself and its member states. A selection of cases from European countries illustrates the current state of “digital media law in action.”

Part Three reviews legislative and regulatory developments in the Asia/Pacific region and provides brief descriptions of the copyright laws in Australia, Singapore, Malaysia, China, Japan, and South Korea. It examines the impact of the international copyright treaties discussed in Part One. This section also provides an overview of actions taken against file-sharing Web sites and peer-to-peer (P2P) services in selected countries in the Asia/Pacific region.

Part Four summarizes the legal campaign against online piracy, provides information about legal actions taken against individual file-sharers, and briefly outlines current attempts to fight online piracy in coordinated operations across the world.

Part Five offers some conclusions about how the legal landscape is evolving in response to the challenges and opportunities posed by digital media.

Comments, as always, are most welcome.

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