INTRODUCTION

No doubt the public domain represents the quintessential boundary of intellectual property (IP). IP rights are sometimes described as islands of protection in a sea of free competition, where the sea of competition stands for the public domain. Remarkably, the concept of public domain is not defined by positive law: neither the international conventions on the topic nor the relevant national legislation give the public domain a precise meaning. As a result, the public domain is commonly understood in a negative way, as everything that is not, or is no longer, protected by IP law. Some recent commentators also include within the ambit of the public domain the uses that the law expressly carves out of the scope of protection. These constitute free spaces allowing for the use of protected material without risk of infringement. Even this broad definition can be called into question, however, as being either too Eurocentric (disregarding the special features of traditional knowledge, for example), too static and formalistic, or too dogmatic. A rigid definition of the public domain is prone to misrepresent reality, in that it risks mischaracterising items or uses that should, or should not, be considered part of it. Moreover, the public domain shifts over time and varies along national border lines.

While its existence is mostly derived from something that is ‘not’, the public domain carries tremendous significance for the pursuit of innovation and creativity. As part of the free flow of information, it is also essential to the democratic process. Items in the public domain are, in principle, available for use by anyone without restriction. For this reason, the possibility to build on the wealth of prior knowledge contained in the public domain, i.e. the possibility to access and use information, is essential in all fields of intellectual endeavour. However one defines the public domain, its socio-economic value is such that it should be nurtured. The importance of leaving room for further creation and innovation when designing IP rights is uncontested: an overly broad and strictly enforced IP regime risks smothering any second comer’s inclination towards ingenuity and progress.