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64 economic interests of the rights holders. This weighing process often leads to varying results from one country to the next. Potential conflicts between the interests of rights owners and those of society take place at different levels and have different grounds. Limitations typically protect freedom of expression and the right to privacy; they safeguard free competition, promote the dissemination of knowledge, or respond to symptoms of market failure. Of course, certain limitations may have been adopted on more than one ground and the justifications underlying a particular limitation may change over time.

National laws are generally silent on the subject of the imperative character of copyright limitations. The legislator’s silence could be interpreted either way, i.e., as providing arguments for or against the imperative character of limitations on copyright. Generally speaking, limitations on copyright have been adopted as an express recognition by the legislator of the “legitimate interests” of users. However, whether the limitations embodying such “legitimate interests” are to be considered imperative or not is likely to depend on a number of factors, including the lawmakers’ conception of the overall objectives pursued by the copyright regime. The imperative or default character of the limitations must therefore be determined by examining the legislator’s intent, as revealed in the legal commentaries and the jurisprudence.

In view of the small volume of literature available in continental Europe on the subject of the public domain, it is difficult to tell whether the notion of public domain would generally be deemed in Europe as extending also to the user privileges recognised under intellectual property law, as it has been suggested in the American literature. However, even if the statutory user privileges are not to be considered as part of the public domain in the strict sense, the widespread use of TPMs in conjunction with contractual restrictions on the exercise of the privileges recognised by copyright law does affect the free flow of information or, as Madison calls it, the “open space”.