The Public Domain in the Greek Law
Attorney-at-Law J.D., M.Sc., Ph.D. (cand.)
Legal Lead Creative Commons Greece | OKFN Greece Steering Committee Member
E: email@example.com | URL: www.marinos.com.gr | FB: http://www.facebook.com/marinos.papadopoulos.77
The Open Knowledge Foundation in Greece which represents nationally and promotes in Greece the goals of the international organization Open Knowledge Foundation (1) supports every effort undertaken in Greece aiming at the promotion of Openness and the public domain causes in the country. Almost all the contemporary reputable supporters for public domain’s necessary existence support the need for its reinforcement and its acknowledgement by proper legal framework, and its use as an opportunity to reconsider Copyright in the era of information networks and Internet networking applications used for accessing and using culture, i.e. knowledge, art and science. Among them are Yochai Benkler, (2) Lawrence Lessig,(3) James Boyle,(4) Pamela Samuelson, (5) Jessica Litman, (6) Jerome Reichman,(7) Mark Rose, (8) Mark Lemley, (9) Julie Cohen, (10) Jonathan Zittrain,(11) Charles Nesson,(12) Diane Zimmerman, (13) Brad Sherman, (14) Michael Birnhack, (15) Charlotte Hess and (the late) Elinor Ostrom, (16) Severine Dussolier, (17) Lucy Guibault,(18) Jane Ginsburg,(19) Bernt Hugenholtz,(20) Rosmary Coombe, (21) and William V. Caenegem(22) of whom almost all elaborate upon current Copyright’s damaging and intrusive application in the commons causing the suffocation of and questioning the survivability of the public domain in a similar way to the description of the so called “tragedy of the commons.” They almost all attest to the fact that the notion of the “public domain” and its statutory recognition and enhancement is a key issue pertaining to the discussion and diffusion of ideas focused on Openness, Open Access, and Copyleft movements. Almost all of the aforementioned public domain supporters have expressed severe criticism for the existing Copyright system which favours super-protectionism of the rights of creators and right-holders. In the digital era, protection of proprietary content against unauthorized use has been underpinned by devices built into the code of software (e.g. DRM, TPM etc) used by the media which profit from the use of proprietary works. Thus, Copyrighted works in the information society are faced with an ‘enclosure movement’(23) unparalleled in its efficiency compares to the past.
Almost all contemporary legal theorists and public domain advocates have eloquently expressed the importance of the public domain and its social value to the on-going creative process and to deliberative democracy. Critics of the current Copyright regime point to the damage done to the intellectual commons by the privatization and excessive appropriation of resources available in the commons under the provisions of Copyright law that cater excessively for authorial “individualism” and “information capitalism” regardless of any public interest in the access to and use of copyrighted works. They contend that the narrow conception of an exclusive individual property right that is over-protected by legislation which in parallel under-protects the general public’s interest in copyrighted works provides an insufficient framework for formulating sound public policy capable to promote the social good through regulation that caters for the protection of Copyright and that is deemed to balance private interests and boost creativity in the market for the sake of society. (24)
Instead, what seems to be necessary nowadays is a prudent level of Copyright protection that is measured and proportionate to an author’s need to appropriate a fair portion of the value of his work while said protective legal framework also caters for the need of the general public to enjoy the fruits of a robust, rich, and sufficiently protected public domain from the “information capitalism” which denigrates the value of intellectual commons and promotes the hyper-thick protections of current Copyright law.(25) The WIPO Development Agenda (26) adheres to a protectionist approach of the public domain. In its Recommendation 16 advocates to “consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.” Also, WIPO’s Recommendation 20 intends to “promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.” WIPO’s adherence to protect public domain indicates an international trend in motivating both national and international policymakers to focus on the definition of the public domain as well as to include provisions in law which cater for the protection and promotion of places of non-exclusive intellectual property rights.(27) In most countries, including of course Greece, the public domain is not sufficiently protected, nowadays.
The fact that Greek legislation caters for works in the public domain and makes provisions for the public’s right to access and use them on condition of due respect to any applicable Copyright or industrial property rights, indicates that the notion of the “public domain” per se in the Greek legislation is the so called “traditional” one according to which the “public domain” is defined as encompassing intellectual elements that are not protected by Copyright or whose protection has lapsed due to the expiration of the duration of the Copyright protection. The negative approach to public domain entails that if Copyright is regulated and promoted then the elements of public domain themselves are generally not subject to any rules or protection(28) or that any rules that might exist governing the public domain and/or ruling for any obligation or right with the aim to enrich and enlarge the public domain with works produced either by public or private bodies succumb to regulation for Copyright protection. Neither is this definitely a positive view for public domain protection, nor a bold step towards the unhindered access of the general public in works supposedly to be in the public domain!
The right approach to public domain’s nature is to understand it not as the realm of material that is undeserving of protection, but as a device that permits the rest of the Copyright system to work by leaving the raw material of authorship available for authors to use.(29) Traces of such a positive stance in case-law concerning the protection of the public domain have already been found in the European Court of Justice,(30) thus there is probably good timing for an amendment in Greek Copyright law favouring such a positive description of the public domain.
The amendment of Copyright law with the aim to include in Copyright legal system provisions for the protection of the public domain is an issue that remains to be put in the agenda of Greek legislators; it also requires extensive public consultation about it. Said amendment should consider the contemporary views upon the positively defined public domain protection as well as the views expressed through the Openness, Open Access, and Copyleft movements to which the international Open Knowledge Foundation as well as the Open Knowledge Foundation Greece have been avid supporters. The Copyleft movement and the licensing of works that has been developed because of and through it is the most characteristic voicing for Copyright reform levering on existing Copyright regulation. Licensing one’s work under a Copyleft license, such as a Creative Commons license, does not amount to the relinquishment of Copyright, but rather amounts to an exercise of Copyright rights provisioned through existing regulation.(31) Based on licenses granting the right to copy, distribute, communicate, and modify the licensed work, Creative Commons licensing pursues similar—yet not identical—objectives to the public domain, i.e. objectives that fit in the notion of the “semi-commons” such as the promotion of free availability, use, and exploitation of licensed works set under certain conditions for such availability, use, and exploitation.(32) In that sense, Creative Commons licensing—and any other Copyleft licensing—ends up in the creation of a commons, a sort of public domain, born from within the monopoly and exclusivity of Copyright. Said licensing enables creating a sphere of free use of licensed works without giving up the author’s exclusivity owned because of effective Copyright. (33)
What is still missing in the Greek Copyright law and what needs to be done is an amendment in legislation aiming at the positive protection of the public domain that could protect it against either privatisation of its elements or unequal legal support compares to the provisions of law that cater for Copyright protection. In France, some scholars (34) have started to develop a positive protection for the public domain on the civil law notion of “les choses communes” or the commons appearing in article 714 of the French Civil Code. (35) The positive description in law of the public domain is a legislative proof that public domain plays an essential role for cultural and democratic participation, economic development, education and cultural heritage. Aligning the private domain of exclusivity and the public domain of collective use within one regime of Copyright is the way to describe in law the balance of interests embedded in Copyright laws that cater for both the right-holders of Copyright as well as the general public’s interests in copyrighted or not copyrighted work. (36) The lack of a positive description in law for public domain as well as the negative definition of public domain in existing legislation as the reverse of Copyright is an evidence of an imbalance in law concerning the protection from one side of author’s exclusive rights and from the other of general public’s interests in creative works. The Greek Copyright law is still imbalanced and lagging in passing a positive description in its provisions for public domain acknowledgement, protection, and enhancement.
1 See OKFN at www.okfn.org [last check, Dec.25, 2012].
2 Benkler, Y., (2003), The Political Economy of Commons, European Journal for the Informatics Professional, Upgrade Vol. IV, no.3, June 2003, available at http://www.benkler.org/Upgrade-Novatica%20Commons.pdf [last check, Dec.25, 2012]; the same, (2006), The Wealth of Networks–How Social Production Transforms Markets & Freedom, Yale University Press, available at http://cyber.law.harvard.edu/wealth_of_networks/Main_Page [last check, Sept.8, 2012]; the same and Nissenbaum, H., (2006), Commons-based Peer Production and Virtue, 14 The Journal of Political Philosophy, 4, pp.394-419, available at http://www.nyu.edu/projects/nissenbaum/papers/jopp_235.pdf [last check, Dec.25, 2012]; the same, (1999), Free As Air to Common Use: First Amendment Constrains on Enclosure of the Public Domain, 74 New York Law Review, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=169330 [last check, Dec.25, 2012]; the same, (2001), Siren Songs and Amish Children: Autonomy, Information and the Law, 76 New York University Law Review, pp.23-113, available at http://www.benkler.org/SirenSongs.pdf [last check, Dec.25, 2012]; the same, (2003), Freedom in the Commons: Towards a Political Economy of Information, 52 Duke Law Journal, pp.1245-1276 , available at http://www.law.duke.edu/shell/cite.pl?52+Duke+L.+J.+1245 [last check, Dec.25, 2012]; the same, (2000), From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 Federal Communications Law Journal, 3, p.561-579, available at http://www.law.indiana.edu/fclj/pubs/v52/no3/benkler1.pdf [last check, Sept.8, 2012]; the same, (2001), Property, Commons, and the First Amendment: Towards a Core Common Infrastructure, Brennan Center for Justice at New York University, available at http://www.benkler.org/WhitePaper.pdf [last check, Dec.25, 2012].
3 Lessig, L., (2001), The Future of Ideas: The Fate of the Commons in a Connected World, Vintage Books, available at http://www.the-future-of-ideas.com [last check, Sept.8, 2012]; the same, (2006), Re-crafting the Public Domain, 18 Yale Journal of Law & Humanities, p.56; the same, (2001), Architecting Innovation, The First Annual Meredith and Kip Frey Lecture in Intellectual Property, Duke University, Mar.23, 2001, video available at http://www.youtube.com/watch?v=XKL0Qy2vRA4 [last check, Dec.25, 2012].
4 Boyle, J., (2003), The Second Enclosure Movement and the Construction of the Public Domain, 66 Law and Contemporary Problems, available at http://www.law.duke.edu/pd/papers/boyle.pdf [last check, Dec.25, 2012]; the same, (2008), The Public Domain: Enclosing the Commons of the Mind, Yale University Press, available at http://yupnet.org/boyle [last check, Dec.25, 2012]; the same, (2006), Tales from the Public Domain: bound by Law?, Duke University Center for the Study of the Public Domain, available at http://www.law.duke.edu/cspd/comics [last check, Dec.25, 2012]; the same, (2007), Cultural Environmentalism and Beyond, 70 Law & Contemporary Problems, pp.5-21, available at http://www.law.duke.edu/shell/cite.pl?70+Law+&+Contemp.+Probs.+5+(spring+2007) [last check, Dec.25, 2012]; the same, (2003), Forward: The Opposite of Property?, 66 Law & Contemporary Problems, pp.1-32, available through http://james-boyle.com [last check, Dec.25, 2012].
5 Samuelson, P., (2003), Mapping the Digital Public Domain: Threats and Opportunities, 66 Law & Contemporary Problems, pp.147-171, available at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+147+(WinterSpring+2003) [last check, Dec.25, 2012]; the same, (2001), Digital Information, Digital Networks, and the Public Domain, available at http://www.law.duke.edu/pd/papers/samuelson.pdf [last check, Dec.25, 2012].
6 Litman, J., (1990), The Public Domain, 39 Emory Law Journal, pp.965-1023.
7 Reichman, J., and Uhlir, P.F., (2003), A contractually reconstructed research commons for scientific data in a highly protectionist intellectual property environment, 66 Law & Contemporary Problems, pp.315-462, available at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+315+(WinterSpring+2003) [last check, Dec.25, 2012].
8 Rose, M., (2003), Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain, 66 Law & Contemporary Problems, pp.75-87, available at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+75+(WinterSpring+2003) [last check, Dec.25, 2012].
9 Lemley, M.A., (2005), Property, Intellectual Property, and Free Riding, 83 Texas Law Review, pp.1031-1087, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602 [last check, Dec.25, 2012]; the same, (2004), Ex Ante versus Ex Post Justifications for Intellectual Property, 71 University of Chicago Law Review, pp.129-196, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=494424 [last check, Dec.25, 2012].
10 Cohen, J., (1998), Lochner in Cyberspace: The New Economic Orthodoxy of ‘Rights Management’, 97 Michigan Law Review, 7, available at http://ssrn.com/abstract=128230 [last check, Dec.25, 2012]; the same, (1998), Copyright and the Jurisprudence of Self-Help, 13 Berkeley Technology and Law Journal, pp.1089-1143, available at http://www.law.berkeley.edu/journals/btlj/articles/vol13/Cohen/html/text.html [last check, Dec.25, 2012]; the same, (2000), Copyright and the Perfect Curve, 53 Vanderbilt Law Review, pp.1799- 1823, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=240590 [last check, Dec.25, 2012].
11 Zittrain, J., (2002), Responses by the Research and Education Communities in Preserving the Public Domain and Promoting Open Access: New Legal Approaches in the Private Sector, National Academy of Sciences, Symposium on the Role of Scientific and Technical Data and Information in the Public Domain, September 6, 2002.
12 Nesson, C., Lessig, L., and Zittrain, J., (1999), Open Code – Open Content – Open Law, Building a Digital Commons, Harvard Law School, available at http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/opencode.session.pdf [last check, Dec.25, 2012].
13 Zimmermann, D.L., (2004), Is There A Right to Have Something to Say? One View of the Public Domain, 73 Fordham Law Review, p.297.
14 Sherman, B. and Wiseman, L., (2006), Towards an Indigenous Public Domain?, Chapter XI in Lucie Guibault and P. Bernt Hugenhotz (eds.) The Future of the Public Domain – Identifying the Commons in Information Law, Kluwer Law International.
15 Birnhack, M., (2006), More or Better? Shaping the Public Domain, Chapter IV in Lucie Guibault and P. Bernt Hugenhotz (eds.) The Future of the Public Domain – Identifying the Commons in Information Law, Kluwer Law International.
16 Elinor Ostrom is the 2009 Nobel Laureate in Economy. Hess, C., and Ostrom, E., (2006), Understanding Knowledge as a Commons—From Theory to Practice, MIT Press; Ostrom, E., (1990), Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge University Press.
17 Dusollier, S., (2009), The public domain in intellectual property: beyond the metaphor of a domain, in Intellectual property and public domain, pp. 31-69; the same, (2008), Le domaine public, garant de l’intérêt public en propriété intellectuelle?, in L’intérêt général et l’accès à l’information en propriété intellectuelle, pp. 117-147, available at http://www.crid.be/pdf/public/5887.pdf [last check, Dec.25, 2012]; the same and Benabu, V.L., (2007), Draw me a Public Domain, in Copyright law, collection research handbooks in intellectual property, pp. 161-184, available at http://www.crid.be/pdf/public/5662.pdf [last check, Dec.25, 2012].
18 Guibault, L., (2006), Wrapping Information in Contract: How Does it Affect the Public Domain?, Chapter V in Lucie Guibault and P. Bernt Hugenhotz eds., (2006), The Future of the Public Domain–Identifying the Commons in Information Law, Kluwer Law International.
19 Ginsburg, J., (2006), Une Chose Publique? The Author’s Domain and the Public Domain in Early British, French and US Copyright Law, Cambridge Law Journal, 2006, Columbia Public Law Research Paper No. 06-120, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=928648 [last check, Dec.25, 2012].
21 Coombe, R., (2003), Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property, 52 DePaul Law Review, pp.1171-1186, available at http://www.yorku.ca/rcoombe/publications/Fear_Hope_and_Longing.pdf [last check, Dec.25, 2012].
22 Van Caenegem, W., (2002), The public domain: scientia nullius, 24 European Intellectual Property Review, 6, pp. 324-330.
23 The expression ‘enclosure movement’ is used in connection with broadening the intellectual property protection term and in combination with technical means—software code—to lock in content so as not to be used without any authorization. See more on the ‘enclosure movement’ at Yu, P., (2007), The International Enclosure Movement, 82 Indiana Law Journal, pp.827-908, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896134 [last check, Sept.8, 2012]; the same, (2007), International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia, Michigan State Law Review, pp.1-33, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1007054 [last check, Sept.8, 2012].
24 Spinello R., and Bottis, M., (2009), A Defense of Intellectual Property Rights, Edward Elgar, p.6. The authors compare ‘normative individualism’ or ‘information capitalism’ with ‘information socialism’ with the aim to ponder on Locke, Fichte, and Hegel’s theories for an author’s moral right to appropriate the value of his/her creative expression without causing any direct harm to the intellectual commons. The authors contend that Locke’s theory is especially helpful in reconciling strong intellectual property rights with a commons composed of intangible goods.
25 Spinello R., and Bottis, M., (2009), ibid, p.10.
26 See The 45 Adopted Recommendations under the WIPO Development Agenda which in 2007 the General Assembly of WIPO Member States adopted (45 out of the 111 original proposals). The 45 adopted recommendations are available at http://www.wipo.int/ip-development/en/agenda/recommendations.html [last check, Dec.25, 2012].
27 Dusollier, S., (2010), Scoping Study on Copyright and Related Rights and the Public Domain, WIPO CDIP/4/3/REV./STUDY/INF/1, p.16, available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=147012 [last check, Sept.8, 2012], p.5, who considers that protection of the public domain comprises of two steps: 1) identifying the contours of the public domain, thereby helping to assess its value and realm, and 2) considering and promoting the conservation and accessibility of the public domain. See, also, Sherman, B., and Wiseman, L., (2006), ibid, p.260 in which WIPO is reported to have said that a robust public domain, rather than being the antithesis of copyright protection, is the foundation upon which the copyright system works. It is the availability of public domain resources that enables exchange and creativity.
28 Dusollier, S., (2010), ibid, p.7.
29 Litman, J., (1990), ibid, p.968.
30 See Opinion of the Advocate General Ruiz Jarabo Colomer, October 24, 2002, in the Linde case, in joined cases C-53/01 (Linde AG), C-54/01 (Winward industries Inc.), and C-55/01 (Radio Uhren AG), regarding the interpretation of Article 3(1)(b), (c) and (e) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1); The Advocate General has held that the public interest should not have to tolerate even a slight risk that trade mark rights unduly encroach on the field of other exclusive rights which are limited in time whilst there are in fact other effective ways in which manufactures may indicate the origin of a product. Said Opinion relates to ECJ Decision of April 8, 2003, that is available at http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?lang=en&num=79969591C19010053&doc=T&ouvert=T&seance=ARRET [last check, Sept.8, 2012]. Dusollier, S., (2010), ibid, pp., 50, 69; Laustsen, R.D., (2009), The principle of keeping free within EU Trade Mark Law, available at http://www.marques.org/teams/LGMS/2009%20Rasmus%20Laustsen.pdf [last check, Sept.8, 2012].
31 Copyleft licensing says that anyone who redistributes a work e.g. software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.
32 Similarly, the in the GNU General Public License (GPL) released in its first version in 1989the GPL license grants unrestricted access and distribution and conditional re-use, a.k.a.the freedom to run the program for any purpose, to study the source code and change it, to make copies and distribute them and finally the freedom to publish modified versions on condition that the modified versions are also under the GPL. The GPL license disallows others to add additional requirements to the software.
33 Dusollier, S., (2010), ibid, p.52.
34 Choisy, S., (2002), Le domaine public en droit d’ auteur, No 22, Litec –Editions du Juris Classeur; Chardeaux, M.A., (2006), Les Choses Communes, LGDJ; Dusollier, S., (2010), ibid, p.67.
35 Article 714 in Book III of the French Civil Code pertaining to the various ways in which ownership is acquired provides that There are things which belong to nobody and whose usage is common to all. Public order statutes regulate the manner of enjoying them. The text in French is Il est des choses qui n’appartiennent à personne et dont l’usage est commun à tous. Des lois de police règlent la manière d’en jouir.
36 Dusollier, S., (2007), Sharing Access to Intellectual Property Through Private Ordering, 82 Chicago-Kent Law Review, 3, p.1932, available at http://www.crid.be/pdf/public/5610.pdf [last check, Dec.25, 2012].