Page:The digital public domain.pdf/53

26 formalities” approach had a precise target: it was an anti-discrimination norm, introduced to avoid any kind of hidden disadvantages for foreign authors. The digitized and interconnected world allows for instantaneous sharing of information and minimises the space and time hurdles that persuaded the international community to abolish formalities. Today, the non-discriminatory goal of Article 5(2) of the Berne Convention may be reached using alternative tools: for instance, a simple and free online copyright register could be easily implemented and made accessible from every country in the world. A carefully crafted registration system may enhance access and the reuse of creative works by attenuating some of the structural tensions between access and property rights encapsulated in our copyright system. Communia has embodied this position in Recommendation #8.

The crucial driver of the modern drift toward commodification of the public domain is a mix of technology and legislation. Technology was able to appropriate and fence informational value that was previously unowned and unprotected. That value was appropriated by means of the adoption of technological protection measures (TPMs) to control the access and use of creative works in the digital environment, including uses that previously could not be restrained. The seal on a policy of control was set by the introduction of the so-called “anti-circumvention provisions” aimed to forbid the circumvention of copyright protection systems. In addition, the law banned any technology potentially designed to circumvent technological anti-copy protection measures.

Anti-circumvention provisions have negative effects both on the structural and the functional public domain. Communia Policy Recommendation #7 pleads for an immediate intervention to protect the public domain against the adverse effect of TPMs. Additionally, Communia would like European institutions to carefully reconsider the adoption of any stronger protection of TPMs included in the last proposed text of the Anti-Counterfeiting Trade Agreement (ACTA), as also recently requested by several European academics. The foremost concern with this legal and technological bundle is that TPMs and anti-circumvention provisions can make copyright perpetual. The legally protected encryption, in fact, would continue after the expiration