recordings and movies, to software and databases. In some instances, new quasi-copyrights have been created, as in the case of the introduction of sui generis database rights in the EU, a quintessential example of the process of commodification of information.[1] Additionally, subject-matter expansion has been coupled with the attribution of strong commercial distribution rights, especially the right to control imports and rental rights, and the strengthening of the right to make derivative works.
Together with the contraction of the structural public domain, the functional public domain has been similarly eroded by the narrowing of the scope of fair dealing or fair use, exceptions and limitations to copyright, and public interest rights. The erosion of public interest rights reached its peak in recent times as a side effect of the transposition of the authorship rights from the analogue to the digital medium. In particular, the enactment of anti-circumvention provisions as a response to the “Internet threat” played a decisive role in the process of contraction of fair dealing rights.
There is, finally, an additional dimension of the process of copyright expansion. Traditionally, the public domain was the default rule of our system of creativity, and copyright was the exception. The abolition of formalities changed it all. As a consequence of the international abolition of formalities enclosed in Article 5(2) of the Berne Convention, copyright was declared the default, and public domain was the exception.[2] By default, intellectual works are created under copyright protection, and public domain dedication must be properly spelled out. Communia opposes any such overreaching expansion of copyright protection and strongly upholds the view embodied in the first general principle of The Public Domain Manifesto that “[t]he Public Domain is the rule, copyright protection is the exception.” Communia upholds the position that the abolition of formalities no longer serves the purpose that it was served in the analogue world.[3] In the field of international law, the mandatory adoption of a “no
- ↑ Mark Davison, “Database Protection: The Commodification of Information”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), pp. 167—89.
- ↑ See Berne Convention for the Protection of Literary and Artistic Works, Art. 5(2), 9 September 1886, as last revised at Paris on 24 July 1971 and amended on 28 September 1978, 1161 U.N.T.S. 30.
- ↑ See also Stef van Gompel, “Formalities in the Digital Era: An Obstacle or Opportunity?”, in Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace, ed. by Lionel Bently, Uma Suthersanen and Paul Torremans (Cheltenham: Edward Elgar, 2010), pp. 395—424. Van Gompel argues that, in the pre-digital era, the objections against copyright formalities were real and, in the light of the changes caused by the advent of digital technologies, there is now sufficient reason to reconsider subjecting copyright to
