1. Directive 2001/29/EC in context
Before turning to the analysis of the impact of the implementation of the provisions of Directive 2001/29/EC on the use of copyright protected works and the activities of libraries, archives and museums, it is important to put the Directive into context. To this end, the first subsection briefly describes the public domain from a continental European law perspective, while the second subsection gives a portrait of the main interests and concerns of libraries, archives and museums.
1.1 Defining the public domain
When trying to map the public domain from a continental European law perspective,[1] it must be emphasised that intellectual property regimes are designed to strike a delicate balance between the interests of authors, inventors or other rights holders in the control and exploitation of the fruit of their intellectual labour on the one hand, and society’s competing interest in the free flow of ideas, information and commerce on the other hand. To this end, most intellectual property regimes admit a number of inherent limits that are designed to promote the dissemination of new works or inventions and to ensure the preservation of a vigorous public domain. These limits are the definition of protectable subject matter (the idea/expression dichotomy), the criteria for protection (the requirement of originality or substantial investment), the fixed duration of the intellectual property protection, and the exhaustion doctrine.
Apart from the copyright regime’s inherent limits, a balance of interest between encouraging the creation and the dissemination of new creations is further achieved through the recognition of limitations on the rights owners’ exclusive rights. Limitations on rights are designed either to resolve potential conflicts of interests between rights owners and users from within the intellectual property system or to implement a particular aspect of public policy. Technically, limitations should reflect the legislator’s assessment of the need and desirability for society to use
a protected subject matter against the impact of such a measure on the
- ↑ See Pamela Samuelson, “The Challenges of Mapping the Public Domain”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (The Hague: Kluwer Law International, 2006), pp. 7–25; and Stéphanie Choisy, Le domaine public en droit d’auteur (Paris: Litec, 2002), p. 53.
