Modèle:ConsultCE2014:A positive statute for the public domain and the voluntary commons

14. A positive statute for the public domain and the voluntary commons

These last 30 years, the most important debates on culture and innovation regarded the respective definition of what can be made an object of private property or exclusive rights, and what must be considered as common. Examples of such debates were:

• the definition of the scope of patentability,
• the delineation of the use rights that must be recognized to everyone even for copyrighted works,
• the enforcement of exclusive rights and the burden of proof of either infringement or the legitimacy of use,
• the ability to share voluntarily one own'w works without being punished by losing some resources.

Such conflicts arise in an unequal playing field. Exclusive rights invoke property rights, identifying intellectual rights with physical property despite all evidence of their different nature. They are also powered by the thick wallet of right holders. In contrast, the rights of each of us are dispersed interests, which can invoke fundamental rights, but without the public domain and communs being granted per se a legal standing.

For these reasons, researchers and legal scholars formulated the project of a positive statute for the public domain, voluntary commons and essential user prerogatives towards works, including the prerogatives of creative workers who need to access and reuse existing works. The aim is to revert, or at least rebalance the situation where the public domain is at most considered as residual or as a market failure, the commons are considered as a territory that one has not yet been privatized, and the user prerogatives are considered as a tolerance that one has consented to because one had not yet found ways to annihilate them. On the contrary, as soon as a positive statute for these common entities will be in place, one will have to consider the impact of any measure on their perimeter, their growth, their maintenance and their effective accessibility.