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34 efforts have been made toward harmonisation, the intricacies of length of protection and copyright extension (such as war extensions) in national jurisdictions aggravate the tension between copyright protection and the public domain. Communia Policy Recommendation #4 calls for further harmonisation of rules of copyright duration. Further, lack of harmonisation of exceptions and limitations in Europe plays a nefarious role for the public domain, as spelled out by Guibault at the first Communia conference. Notwithstanding the Information Society Directive aimed at harmonising exceptions and limitations, legal uncertainty still persists. All but one of the limitations in the regime set up by the Information Society Directive was optional, and the regime provides the Member States with ample discretion to decide if and how they implement the limitations.

This variety of different rules applicable to a single situation across the European Community has an adverse effect on the functional public domain thus undermining the users’ prerogatives. Communia Policy Recommendation #3 asks for further harmonisation and revision of exceptions and limitations across Europe, together with the introduction of an open fair dealing exception to close any loopholes that predefined exceptions and limitations may have. Europe has the opportunity to acquire a leading international role in the fair use industry, by taking full advantage from the European system of predefined exceptions and limitations, if contrasted with the more unpredictable United States case-by-case fair use model.

Finally, the promotion of the public domain calls for an effort towards harmonisation of the definition of the moral right of integrity and duration of moral rights after the death of the author. Communia trusts that moral rights should not extend longer than economic rights. This arrangement would be compliant with the minimum standard set by Article 6bis (2) of the Berne Convention, which states that the moral rights of the author “shall, after his death, be maintained, at least until the expiry of the economic rights”.