Drawing the Contours of the European Public Domain

Abstract

The key question that this chapter aims to address is how, and on what ground, conflicts around the public domain are adjudicated in different contexts. In order to answer this question, the first step consists in examining the rationales behind the current European IP regimes, and more specifically behind the European regimes of copyright and database right (II.). In theory if the goals pursued by a particular legal norm are clear, then the contours of that norm should be easily ascertainable. In other words, the study of the justifications behind the regimes should shed light on the reasons given for the assessment of a conflict between opposing norms. The focus of this chapter is on European Union IP law, specifically copyright and database right, because of its high degree of harmonization. While the various principles underlying the national copyright regimes may serve as guide for the European lawmaker (II.A), an in-depth analysis of such national influences would take us beyond the scope of the BIP-project. The brief analysis of the underpinnings of EU copyright law (II.B) leads to a discussion of the place of the public domain in harmonized European copyright law (II.C). The next section discusses how the rules of European IP law are applied in specific factual situations depicted in the BIP-Cases that touch on the boundaries of a particular IP regime, in the light of the stated objectives of that IP regime (III.).