Public domain protection. Uses and reuses of public domain works

AuthorMonica Adriana Lupa?cu
PositionPhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail:
Monica Adriana LUPAȘCU*
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."
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:
David Lange, Reimagini ng the Public Domain, 66 Law and C ontemporary Problems , Wint er 2003, p.
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

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