Page:The digital public domain.pdf/32

Rh "domain does not prevent its ongoing encroachment, but might conversely facilitate it. In order to effectively preserve the public domain, an adequate legal regime should be devised so as to make the commons immune from any legal or factual appropriation, hence setting up a positive definition and regime of the public domain."

The affirmative public domain was a powerfully attractive idea that propelled the “public domain project”. Many authors in Europe and elsewhere attempted to define, map and explain the role of the public domain as an alternative to the commodification of information that threatened creativity. This ongoing public domain project offers many definitions that attempt to construe the public domain positively. A positive, affirmative definition of the public domain is a political statement, the endorsement of a cause.

As The Public Domain Manifesto puts it, the public domain is the “cultural material that can be used without restriction”, and which includes a structural core and a functional portion. The structural core encompasses the “works of authorship where the copyright protection has expired” and the “essential commons of information that is not covered by copyright”. The functional portion of the public domain consists of the “works that are voluntarily shared by their rights holders” and “the user prerogatives created by exceptions and limitations to copyright, fair use and fair dealing”.

However, notwithstanding many complementing definitional approaches, consistency is to be found in the common idea that the public domain is the material that composes our cultural heritage. The public domain envisioned by Communia becomes the “place we quarry the building blocks of our culture”, as put by James Boyle, the co-director of the Duke Center for the Study of the Public Domain, and a member of the Communia network. At the same time, the public domain is the building itself. It is, in the end, the majority, if not the entirety, of our