Page:The digital public domain.pdf/109

82 openness of certain resources whose access and use would be automatically restricted under copyright law. From this perspective, digital resources embodying public domain works such as a Bach suite, a Brahms symphony or a Shakespeare play would never become a commons for the public at large if music and theatre performers and/or recording producers did not release their performances and recordings under open access licences. In short, the basic assumption of this chapter is that performers’ and producers’ open access management of their copyright-related rights in the digital environment enables the public enjoyment of creative works and gives an essential contribution to the building of digital commons. We will begin by considering how the use of open access licences for recordings and other forms of digital performances protected by rights related to copyright has a legal impact on the notion of digital commons. By giving a few examples of digital platforms which make use of open access licences for the dissemination of music performances we will show that, as European copyright law stands, the most evident and fruitful use of open access licences for the building of digital commons  regards the category of old works whose copyright protection is expired and whose copying, dissemination and, possibly, reuse has been preventively authorized on the grounds of an open access licence. Finally this contribution demonstrates that public bodies and other entities that intend to institutionally pursue the policy objective of maximising the dissemination of creative works through the building of freely accessible platforms and repositories of digital commons should promote the implementation of open access licences by holders of copyright-related rights. These rights-holders may be given an incentive (even an economic incentive) to make their creations available to the public for purposes other than those of making an immediate profit from the licensing of digitized items.

1. Legal effects of open access management of rights related to copyright

In legal terms, like author’s copyright, rights related to copyright or “neighbouring” rights (according to the traditional lexicon of international conventions in this field) establish exclusive rights which have the effect of restricting any unauthorized use, communication and modification of audio and audiovisual performances and recordings of unprotected