Public domain protection. Uses and reuses of public domain works

• Author: Monica Adriana Lupa?cu
• Position: PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: monica.lupascu@cyberlaw.ro).
• Pages: 38-49

LESIJ NO. XXII, VOL. 1/2015

PUBLIC DOMAIN PROTECTION. USES AND REUSES

OF PUBLIC DOMAIN WORKS

Monica Adriana LUPAȘCU*

Abstract

This study tries to highlight the necessity of an awareness of the right of access to the public

domain, particularly using th e example of works whose protection period has expired, as well as the

ones which the law considers to be excluded fro m protection. Such works are used not only by large

libraries from around the world, but also by rights holders, via different means of u se, including

incorporations into original works or adaptations. However, the reuse that follows these uses often

only remains at the level of concept, as the notion of the public’s right of access to public domain works

is not substantiated, nor is the notion of the correct or legal use of such works.

Keywords: copyright, public domain, exceptions and limitations, innovation, right of access,

technological means of protection, TPM, protection system, access to culture, copy control mechanism,

Circumvention of TPMs. *

1. Public domain protection?

I mentioned a so-called “protection” of

the public domain and it might seem

inappropriate that I talk about the protection

of a sector that includes works that are meant

to be used freely, meaning unprotectable,

whose main characteristic is that they can be

used in any way without the consent of t he

author/proprietor, and without payment of

any fee.

But the free use must not be co nfused

with the right of ownership. Large defined

the public domain as being “a place of

sanctuary for individual creative expression,

a sanctuary conferring affirmative protection

against forces of private appropriation that

threatened such expression."

1

Public domain works can be used in

any way, it’s true, can suffer any form of

* PhD Candidate, Faculty of Law, ”Nicolae Titulescu” University of Bucharest (e-mail:

monica.lupascu@cyberlaw.ro).

1

David Lange, Reimagini ng the Public Domain, 66 Law and C ontemporary Problems , Wint er 2003, p.

463-484.

transformation, adaptation, remixing,

incorporations of any kind, but none of these

forms should lead to a way of appropriation

of the public domain work, damaging o ther

users or in the detriment of other types of

uses. It’s true that a new work is created,

with patrimonial and moral rights that are

distinct from the ones held by the original

work. But all of these new rights can be

exercised only as far as the new contribution

is concerned, this or iginal component being

different from the one which belongs to

public domain.

Because there won’t always be a clear

demarcation between the two types of

works, or rather between the public domain

work and the added value of the new

contribution, there are cases in which the

proprietors of the new work have tried to

exercise their exclusive exploitation rights

over the work as a whole, including over the

public domain component, forbidding any