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Synthesis of the 4 conference streams by appointed rapporteurs
Synthesis : Tom Dedeurwaerdere (Professor at the Faculty of Philosophy, Director of research at the Centre for the Philosophy of Law (CPDR), Université catholique de Louvain, Belgium )
Moderator : Ed Steinmueller (Professor at the University of Sussex, United Kingdom)

This paper presents an evaluation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the digital information society. Although the public domain is nowhere explicitly mentioned in the Directive, the overall framework that it creates undeniably affects the way digital copyright protected works are being used.
The objectives of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society were twofold: (1) to adapt legislation on copyright and related rights to reflect technological developments, and (2) to transpose into Community law the main international obligations arising from the two treaties on copyright and related rights adopted within the framework of the World Intellectual Property Organisation (WIPO) in December 1996. As one of the centrepieces of the Lisbon Agenda, which aims at making the European Union “the most dynamic and competitive knowledge-based economy in the world” by 2010, the Information Society Directive is seen a crucial element in any strategy leading towards fostering the growth of the knowledge-based economy in the European Union. Does the Directive achieve the goals set by the legislator? How does it generally impact the use of copyright protected works and thereby, the evolution of the public domain?
At the same time, the copyright framework must be able to take account of the needs for digitisation and online accessibility of cultural material and digital preservation by libraries, archives, and museums. The European Commission published a Recommendation on the digitisation and online accessibility of cultural material and digital preservation in 2006 . The objective of the Recommendation is to develop digitised material from libraries, archives and museums, as well as to give citizens throughout Europe access to its cultural heritage, by making it searchable and usable on the Internet. The achievement of these goals inevitably raise copyright issues. As noted in Recital 10 of the Recommendation, only part of the material held by libraries, archives and museums is in the public domain, while the rest is protected by intellectual property rights. To what extent does the Information Society Directive allow libraries, archives and museums to comply with the objectives of the Recommendation?

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The paper describes in §§ 1-2 the EU policy on digital libraries and the role played within it by the High Level Expert Group (HLG), with special reference to the findings in the Final Report by the Copyright Subgroup of the HLG. In §§ 3-6 it summarizes the analysis and recommendations by the Subgroup in four areas, digital preservation, web harvesting, orphan works and out-of-print works. It further discusses in § 8 four other crucial copyright issues which digital libraries have to face, which, while not addressed by the Report, might belong to a “Second Basket” of policy-making open questions. After examining in § 9 some assumptions of the EU policies in connection with libraries, archives and museums, the paper addesses in § 10 the question whether copyright as we know it still is an appropriate tool in the current digital context or should be displaced by another mechanism. Finally it analyzes the impact of the move towards a new regime (Copyright 2.0) on the costs and benefits of digital libraries.

This work is licensed under a Creative Commons Attribution 3.0 Unported License.

The Austrian Competence Network for Media Design, a research consortium of Austrian higher education institutions and SMEs in the socalled creative industries, had launched a service for registering creative works at the WizardsofOS conference in Berlin in September 2006. After nearly two years of operation, we would like to draw a summary of experiences and challenges. Furthermore, we will have a look at related services and Creative Commons' strategy on this issue.
The creator who registers with Registered Commons benefits from two important advantages. A certificate issued allows the creator to provide evidence for her intellectual ownership of a work. Secondly, and almost as important for evidence of authorship as a certificate, Registered Commons digitally records the exact time of a registration with a timestamp, obtained from a trusted third party. Typical users are musicians or photographers, who are keen to post individual works on the internet, but who wish to retain control over them, or bloggers and even agencies who prior to giving client presentations, wish to protect their work from plagiarism using the timestamp.
Companies who are interested in the commercial distribution and other uses of the material require legal security for their business, notably in the form of reliable information. Precisely this is missing from many websites that offer material under alternative licences, the public domain as well as for orphan works.
In this paper we present good practices for online registration services at the first COMMUNIA conference on the Public Domain in the Digital Age (COMMUNIA 2008). Furthermore, we will be going to ask the following questions: Is reliable and simple registration of works the right way to improve confidentiality and trust? How could Rights Collecting Societies benefit from such registries? What kind of governance is required, to run such registries? And do they conflict with public patent laws or authorities? We will conclude with a proposal for either adapting the DMP authority scheme or establishing registration peering and using existing namespaces. The authors are affiliated with Registered Commons, a service initiative launched in 2006.

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 Unported License.

This paper seeks to explore how the implementation of open access licences onto recordings and other forms of digital performance of creative works which have entered the public domain, complements the notion of digital commons.
The paper starts from the assumption that there are types of creative works (i.e. music works, theatre plays, etc) whose effective dedication to the public domain for the benefit of the public at large would never reach the full status of “commons” if digitised performances of these works were not disseminated under open access licences (e.g., Creative Commons’).
The introduction draws on the assumption that creative works which give rise to a huge stock of the public domain in certain fields of creativity would not become available to the public in digital formats (at least for free) without the necessary intermediation of performers and producers of audio and video recordings. From this perspective, there would be no lawful way for the public at large to enjoy for free digital items embodying creative works such as a Bach’s suite, a Brahms’s symphony or a Shakespeare’s play, if certain kinds of music and theatre performers and/or recording producers did not release their digital performances and recordings using open access licences.
The paper seeks to explain why the implementation of these licences to the management of copyright-related rights for the achievement of an effective dedication of certain works in the public domain to the digital commons is of very high relevance. It is argued that, at least in civil law (i.e. droit d’auteur) systems, newly created works of art are copyright protected by default and fall into the public domain only after expiration of the protection term of 70 years post mortem autoris. Unlike U.S. law, droit d’auteur systems do not seem to endorse and confer validity upon copyright licences which aim to make new works available in the public domain immediately, through a relinquishment in perpetuity of all present and future rights under copyright law by the author.
By considering some examples of digital platforms making use of open access licences for the dissemination of music works adopted by both music performers and recording producers, the paper shows that, as European digital copyright laws stand, the mostly evident and fruitful use of open access licences for the building of digital commons in the field of creative works concern old works whose copyright protection is expired and whose copying, dissemination and, possibly, re-use has been preventively authorised on the grounds of a “copyleft” licence.
The paper concludes that public bodies and other entities that institutionally pursue the policy objective of building platforms and repositories of digital commons should promote the implementation of open access licences by holders of copyright-related rights (e.g., educational institutions, young performers and ensembles, virtual recording labels, etc) and provide incentives to make their digital works available to the public for purposes other than that of making an immediate profit from the sale/licensing of digitised items.

Keywords: open access, public domain, digital commons, copyright-related rights, performances, recordings, digital repositories

Objective of this paper is to examine the reasons why a Commons Based Peer Production (CBPP) model may be applied in the case of developing regulatory instruments and the implications from the implementation of such a production mode. Starting point for the paper is the observation that CBPP constitutes a representation of an increasing number of institutions and organizational constellation of contemporary society ranging from Free Open Source Software to social networks software, open manufacturing or distributed political networks. The prevalence of CBPP is a direct result of contemporary socio-technical conditions and as this paper argues it also causes a paradigmatic shift in the way we built regulation. This study focuses on the regulation of IPRs as a primary example of the way in which CBPP appears as an alternative model for regulatory production. While the discourse in relation to the protection of the public domain has been primarily focused on the question of its regulatory content (i.e. achieving a more balanced rights allocation and dealing with the issue of mass scale infringement), this paper argues that it should also focus on the mode of producing the relevant regulatory instruments. The mis-match between the socio-economic realities of a digitally networked environment and regulatory content is the symptom of a deeper problem of regulatory alienation of the regulated subject from the content of the relevant regulatory instruments. The adoption of a CBPP model for regulatory production could solve problems of efficiency and effectiveness as well as of representation. The Creative Commons (CC) case is presented as a paradigmatic case of applying such a model for the production of licensing schemes and policies that could operate as an add-on to the existing Copyright system. While CC is a first effort toward the direction of CBPP regulatory production is far from being one. This paper examines the degree to which CC conforms to the CBPP model, the reasons why is should move more actively toward such direction and the ways in which this could be done. This research concludes by highlighting the importance such paradigmatic shift could have for the area of IPR regulation and the potentials from adopting such a regulatory strategy.

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 Unported License.