is whether we, as a society, are up to the task of re-inventing, and challenging our notions of democracy, education, economy and social interaction.
Communia maintains that Europe should not be afraid of changing and flourishing. It believes that policy strategies implementing openness in information management are the key to any change that may fully exploit technological advancement. Any actions towards the enclosure of the public domain should be reversed. Outmoded intellectual property models should be re-invented. Again, Ricolfi, reminds us that the time to take up this challenge has come, regardless of how daunting the task may be.[1] This solicited change is sought to address the many challenges and tensions that the present intellectual property system is presenting to the public domain. The discussion of the most relevant of those challenges and tensions will be the focus of the next portion of this essay.
3. Public domain challenges and bottlenecks
There is an undeniable tension between the public domain and the copyright system. This tension is represented by an equation where the enclosure of the public domain is proportional to the expansion of the copyright protection.[2] This tension is unavoidable and originates from the dual functionality of knowledge as a commodity and as a driving social force. At the second Communia conference, Bernt Hugenholz referred to this tension as the “paradox of intellectual property”, because intellectual property is a “system that promotes, or at least, aspires to promote knowledge, dissemination, cultural dissemination by restricting it”, by creating temporary monopolies in expressed ideas or in applied invention.[3]
In Europe, the paradox is heightened by the intensity of moral rights. The strength of moral rights, especially the moral right of integrity, conversely weakens the public domain. In Europe, moral rights are inalienable and potentially perpetual. Any copyright expirations, public domain dedications or the licensing of a creative work under open access and reuse models will only enrich the structural and functional public domain under
the assumption and to the extent that moral rights are not infringed. The
- ↑ Ricolfi (2008), p. 15.
- ↑ See Jerome H. Reichman and Jonathan A. Franklin, “Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information”, University of Pennsylvania Law Review, 147 (1999), 875-970.
- ↑ See P. Bernt Hugenholtz, “Owning Science: Intellectual Property Rights as Impediments to Knowledge Sharing”, paper delivered at the second Communia conference, Turin (29 June 2001).
