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32 options discussed by the group ranged from the abolition of CHPLs, the harmonisation of CHPLs across the EU, and the gradual transition towards less and more rational restrictions. In particular, the most important conclusion of the meeting was that CHPLs could be used in order to mark and protect the public domain, if the permission system possibly in place is accompanied by an obligation to mark the work as a public domain work. Together with the more substantial and specific factors troubling the public domain so far described, there are other more generic aspects of the legislative process that should be redressed to better protect and promote the European public domain. Lack of representation of the interest of users and the public, lack of transparency of the legislative process, obscurity of copyright legal provisions, and lack of legal harmonisation are all factors that aggravate the tension between public domain and copyright protection.

Enclosure and commodification of the public domain are also the result of an unbalanced legislative process. Lobbying from cultural conglomerates played an important role in amplifying the process of copyright expansion beyond strict public interest. The public at large has always had very limited access to the bargaining table when copyright policies had to be enacted. This is due to the dominant mechanics of lobbying that largely excluded the users from any decision on the future of creativity management. In accordance with Mancur Olson’s work, copyright policy is driven by a small group of concentrated players to the detriment of the more dispersed interest of smaller players and the public at large. The final outcome has been the implementation of a copyright system that is strongly protectionist and pro-distributors with an overbroad expansion of private property rights followed by a correspondent restriction of public prerogatives and enclosure of the public domain.

Legal uncertainty is an additional hurdle to the public enjoyment of a healthy and rich public domain. By blurring the contours of the structural and functional public domain, legal uncertainty will augment the