Page:The digital public domain.pdf/55

28 under copyright law. The digital information marketplace has seen the emergence of standard form contracts restricting the capacity to use information not or no longer qualifying for intellectual property protection or whose use is privileged. The most powerful example is that of click-wrap agreements stating that some uses of scanned public domain material are restricted or prohibited. A glimpse of such a practice has been implemented by Google as part of its project to partner with international libraries to digitize public domain materials. If you download any public domain books from the Google Books website, quite awkwardly the Usage Guidelines included at the front of each scan read as follows: “We also ask that you: + Make non-commercial use of the files. We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes”. In the preamble to the Usage Guidelines, Google justifies these restrictions by stating that the digitization work carried out by Google “is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties”. Communia Policy Recommendations #5 and #6 set up principles to protect affirmatively the public domain against the misappropriation of public domain works with special emphasis on their digital reproduction.

However, the synergy between mass-market licenses and technological protection measures poses the major threat to the availability of digital information in the public domain. As Guibault has noted at the first Communia conference:

The digital network’s interactive nature has created the perfect preconditions for the development of a contractual culture. Through the application of technical access and copy control mechanisms, rights owners are capable of effectively subjecting the use of any work made available in the digital environment to a set of particular conditions of use.

This was never the case in the analogue environment. The purchase of a book, the enjoyment of a painting or a musical piece never entailed the obligation of entering into a contract in the past. Hence, the emergence of this contractual culture, coupled with strict technological enforcement, has been endangering the public domain with a new set of threats. Technological protection measures empower the application and enforcement of mass-market licenses on the Internet that may restrict