The Future of the Public Domain: Identifying the Commons in Information Law

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Kluwer Law International B.V., Jan 1, 2006 - Law - 377 pages
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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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Contents

Chapter
1
Normative Reasons to Map the Public Domain
21
The Incentives Paradigm and the Normative Analysis of the Public
37
Some Hidden Assumptions of the Traditional Law and Economics
45
Property Rights and the Public Domain Revisited
55
More or Better?
64
More or Better?
73
The Public Domain and the Market
82
Conclusion
188
Protecting the Domain of Accessible Knowledge
209
Mapping the International Domain of Accessible Knowledge
218
Chapter X
223
Establishing a Property Right in Personal Data
230
Contractual Freedom Control Rights and the EU Personal Data
242
The Costs of a Property Rights Approach
251
Conclusion
257

Contracts Relating to Public Domain Information
89
Impact of Contractual Practices on the Public Domain
98
Conclusion
104
Control over Information
110
Freedoms of Expression and Information
117
A Brief History of an Idea
124
Toward a Social Theory of Creative
137
The Public Domain and Commodification Reconsidered
157
Conclusion
166
Chapter VIII
167
Lessons from the EU and American Processes
180
Impact of Extending IP Protection to Indigenous Creations
265
Chapter XII
279
Policy Instruments Affecting Access
289
Conclusion
300
Is Open Source an Answer to Commodification?
309
Chapter XIV
325
Empowering Owners to Govern Their Own Works
334
Proliferation of Licenses and Barriers on Access
341
Workshop Discussions
347
About the Contributors
373

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