capacity of the heirs and descendants of an author to claim infringement in perpetuity threatens the public domain with legal uncertainty. Adaptations and re-interpretations of works, abridged versions of works, colourisations of movies, or the application of other future unforeseeable technological tools, which may somehow temper with or modify the perception of the original work, may all trigger the reaction of the author’s estate in perpetuity.
However, digitization and internet distribution have exacerbated these traditional tensions between copyright protection and the public domain. The misperception of the “Internet threat” has led to a reaction that endangers the public domain.[1] Concurrently, the opportunities that digitization and Internet distribution offer to our society make enclosure and commodification of our information environment even more troublesome. As Paul A. David, keynote speaker at the first Communia conference, noted:
[t]oday, the greater capacity for the dissemination of knowledge, for cultural creativity and for scientific research carried out by means of the enhanced facilities of computer-mediated telecommunication networks, has greatly raised the marginal social losses that are attributable to the restrictions that those adjustments in the copyright law have placed upon the domain of information search and exploitation.[2]
With large agreement, scholars and the civil society have warned that “we are in the midst of an enclosure movement in our information
environment”.[3] Boyle has talked about a second enclosure movement that it is now enclosing the “commons of the mind”.[4] As for the natural commons, fields, grazing lands, forests, and streams that were enclosed in the sixteenth century in Europe by landowners and the state, relentlessly expanding intellectual property rights are enclosing the intellectual commons and the public domain. In a very similar fashion, Peter Drahos and John Braithwaite have spoken of an “information feudalism”.[5] Enclosure is promoted by a mix of technology and legislation. According
- ↑ Boyle (2008), pp. 54—82.
- ↑ Paul A. David and Jared Rubin, “Restricting Access to Books on the Internet: Some Unanticipated Effects of U.S. Copyright Legislation”, Review of Economic Research on Copyright Issues, 5 (2008), 23-53 (p. 50).
- ↑ Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain”, New York University Law Review, 74 (1999), 354-446.
- ↑ See Boyle (2003 and 2008); see also Keith Maskus and Jerome H. Reichman, “The Globalization of Private Knowledge Goods and The Privatization of Global Public Goods”, Journal of International Economic Law, 7 (2004), 279-320; David Bollier, Silent Theft: The Private Plunder of Our Common Wealth (New York: Routledge, 2002).
- ↑ See Peter Drahos with John Braithwaite, Information Peudalism: Who Owns the Knowledge Economy? (London: Earthscan, 2002).
