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Benabou, Valérie-Laure; Dusollier, Séverine --- "Draw me a public domain" [2007] ELECD 299; in Torremans, Paul (ed), "Copyright Law" (Edward Elgar Publishing, 2007)

Book Title: Copyright Law

Editor(s): Torremans, Paul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424879

Section: Chapter 7

Section Title: Draw me a public domain

Author(s): Benabou, Valérie-Laure; Dusollier, Séverine

Number of pages: 24

Extract:

7 Draw me a public domain
Valérie-Laure Benabou1 and Séverine Dusollier2



`Draw me a sheep!'
...
`This is only his box. The sheep you asked for is inside.'
(Antoine de Saint Exupéry, The Little Prince)

Introduction
Like the sheep of the Little Prince, the public domain is presumed to be exist-
ing but is actually very hard to draw precisely. It is mostly viewed as a mere
box into which the objects once protected by intellectual property, or never
liable to its protection, are deemed to be `falling'. But no one knows what
happens next, after the fall: what becomes of the sheep once it is inside the box?
So far, `European Intellectual Property' (if one can consider there is a
common body of intellectual property in Europe, whether in legislation or in
legal scholarship), has had little impact on issues related to the public domain.3
The question has never been evoked as such during the harmonisation of the
field; case-law is lacking; doctrine is only just emerging.4 In contrast, in the
United States, the public domain has been a favourite theme for scholarly
research and writing in recent years: many have denounced the `enclosure of
public domain'5 or have pleaded for its defence against undue appropriation.6


1 Professor at the University of Versailles ­ Saint-Quentin-en-Yvelines, France.
2 Professor at the University of Namur, Belgium.
3 The hypothesis of a positive status for the public domain that is developed in
...