Public domain protection. Uses and reuses of public domain works

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 the example of works whose protection period has expired, as well as the ones which the law considers to be
excluded from protection. Such works are used not only by large libraries from around the world, but also by
rights holders, via different means of use, 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 the
author/proprietor, and without payment of any
fee.
But the free use must not be confused 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 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 other 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 original
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

* PhD Student, Faculty of Law, Nicolae Titulescu
University of Bucharest (monica.lupascu@cyberlaw.ro)
1
David Lange, Reimagining the Public Domain, 66 Law
and Contemporary Problems, Winter 2003, p. 463-484
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 form of usage. These uses are
completely inappropriate and disadvantageous
for society, because it can be deprived of
exercising the right of access to the public
domain work.
Mostly, everything starts from a misperception
of what a “public domain work” means. The
majority of people thinks that it’s an
abandoned material, when, in fact, it’s a
material that belongs to everyone, meaning a
material upon which we all have rights and the
protection that is mentioned in the title refers
exactly to this aspect, namely the protection of
the rights that every person holds over public
domain materials, rights that need to be
protected in the same way that regular works
are protected by copyright.
The most discussed case of private
appropriation is that of Disney Enterprises,
Inc., a producer who, following the exhaustion
of the exploitation rights in its 1938’s
adaptation, started a series of trademark
registrations of several character names such
as “Snow White” who, before belonging to its
film adaptation, belonged to a story that was
part of the public domain (“Snow White” - as
part of the Brothers Grimm anthology).
Actually, the replacement of a determined and
limited in time form of protection is being
attempted, with an infinite one (through mark
renewals) and maybe the perseverance of
defending intellectual property rights as
efficiently as possible would be admirable, if
this form of protection wouldn’t cover
elements that belong to public domain and that
should remain in this sphere of free use.

Another example is that of the works
management done by libraries and museums.
There is now a fairly high frequency of efforts
to digitize works owned by museums and
public libraries. Although works that these
institutions present to the public digitally
belong to the public domain (most works’
protection periods have expired), the access to
these is marked by copyright references that
belong to said libraries and museums. Since
the work in question is not protected by
copyright, the only right that could be claimed
is over photographic reproduction. But
photographic reproductions of public domain
materials cannot be protected, as they lack the
main quality – originality. This was argued in
a case discussed before U.S. courts, but could
easily be argued before any other court
(including the European ones), because a
digital copy is just a form of reproduction; if
the original belongs to the public domain the
copy has to belong to it as well. These things
seem clear and simple, but the copyright
references of libraries and museums are
mentioned to the damage of the public, which
perceives the access to these works as being
restricted.2
Libraries and museums have gone from
copyright references to publicly communicate
the works by submitting to open licenses, such
as creative commons, but isn’t the access to
this licensing system allowed solely to
authors/owners? It’s the case of the National
Library of Spain, which uses open licensing
(licensing systems that should not be confused
with copyright), in order to communicate
works that belong to the public domain. It’s
what can be called an attempt to limit the use
of works that should be available to anyone.
2. What is public domain and what is the
importance of the right of access?
The report issued by WIPO in 2010 on the
protection of traditional knowledge and
traditional cultural expressions of folklore3
has
held that the public domain “consists of
intangible materials that are not subject to
exclusive IP rights and which are, therefore,
freely available to be used or exploited by any
person.”

2
Ignasi Labastida i Juan, The Digital Closing Of The
Public Domain,
http://blogs.cccb.org/lab/en/article_el-tancament-digital-
del-domini-public/ - Long live the public domain
3
World Intellectual Property Organization Draft report of
Sixteen Session, 2008
The definition does not transpose a normative
text; the sphere of what public domain
involves being rather inferred/understood in
relation to what a work that benefit or could
benefit from copyright protection means.
Perceived more as a symbol of non-property
(the opposite of property), the public domain
seems to contradict protection itself, although
there are plenty of opinions who argue that, on
the contrary, innovation, in its essence,
depends on the existence of a rich/vast public
domain.
We support this opinion, adding that the
position according to which the act of creation
itself is the result, not only of the individual
effort, but of the multitude of resources made
available throughout the years, needs to be
affirmed. Among these, a substantial part is
represented by the public domain materials, a
range of works whose protection rights have
expired, for example, or which do not fulfill
the conditions to be protected by copyright,
any one of them being available to be taken
and used for the development of future works.
One could say that the creative act itself can be
dependent on the existence of a public domain
that the author can access and that should
contain a wide enough variety of quality
works.
The aforementioned WIPO report clarifies the
types of works that can belong to the public
domain; this nuancing is important because
each type comes with specific abusive forms
of use or with specific limitation forms of
subsequent access.
WIPO identifies three categories in the sphere
of public domain: (i) works whose protection
term has expired, (ii) works that do not meet
the legal conditions to be protected by
copyright and (iii) invalidated materials (if we
consider the US legislation from before 1978,
for example, these would be works that have
not been registered or those that, after their
registration, have never been renewed).
Freedom of use, the first of the characteristics
that are presented as a common denominator
of all the aforementioned categories, actually
represents an effect of the lack of any
intellectual property rights. The work,
although it can belong to a certain author, will
be available for use, in principle, without
restrictions, without the need of any payments
or requesting said author’s permission. A
second common characteristic of all the works
belonging to the public domain is accessibility,
a characteristic that, moreover, emphasizes the

freedom of use because a free work that cannot
be accessed, is in fact a work that carries
restrictions, one being unable to refer to these
as public domain works.
Concretely, freedom of use and accessibility
are not just features derived from the definition
of public domain, since they mark the
existence of certain rights that automatically
arise in each person’s patrimony. Accessibility
is only one aspect of the right of access, while
the characteristic of being free cannot be
accepted in the lack of a right of usage without
restrictions, all of these generating,
independently, as well as corroborated, the
need for symmetric exploitation.
This is the context in which we can talk in
detail about the existence of a right of access
that can be exercised by any person, regarding
any public domain work and without which the
public domain itself is under the risk of
remaining at the level of concept, with
repercussions on innovation itself.
I think of the right of access to public domain
as being one of the cultural rights, considered a
natural component of human rights, without
which the human personality cannot assert
itself in its entirety.
Edmond Kaiser maintained, in his study “Terre
des Hommes” (“Lands of People”) that
cultural rights are “acknowledged as one of the
most important conquests of the human spirit,”
the states’ obligation being that of “insuring
the access to training, education, participation
in the cultural life, in order to guarantee the
normal development of the individual, in a
world that is increasingly more complex and
demanding.”
Is the existence of this right of access to public
domain works certain? And what value does
this right have in relation to copyright? In
order to answer these questions, some aspects
correlated with the very functions of copyright
need to be mentioned.
The copyright limitations, for example, have
been discussed and sustained from the very
first forms of copyright regulation, and they
are especially correlated with its social
function.
The social function of copyright imposes a
double limitation – in its duration – and in
exercising certain prerogatives. In order to
explain the limitation in exercising copyright,
Adoph Diez talks about a tension relation
between copyright and modern society’s need
for information. From this perspective, we
could, in reality, consider that, in addition to
the categories indicated by the
abovementioned WIPO report, one can also
talk about a free use category resulted from
copyright limitations and exceptions.
What justified the existence of these
limitations? Was the protection system always
thought out to be limited, or is it in its nature
that rights not be exclusive or that this
exclusivity manifest itself within certain
limits? There are interpretations that explain
the existence of these limitations as a
regulation of exception, conceived to lead the
work to its destiny of being devoured by the
consumer and to finally become a part of the
cultural heritage, which needs to be
continuously enriched. The limitative nature of
copyright is explained, as well as the purpose
of the regulation derived from the copyright’s
social function, which is that of also satisfying
the public’s need of information/knowledge.
This perspective is not at all wrong, but
without a detailed explanation of what a
regulation is in the field of copyright, the
majority will perceive the existence of
limitations as being similar to a series of
legislative favors awarded by authors and
owners to society in general. Whereas in
reality, copyright limitations and exceptions
“translate” into fact real rights of access to
protectable works or to works in general (if we
take into account the works from the public
domain).
Anyway, to not recognize the rights of the
public (with the right of access in a leading
role) in this field is equivalent to deny the
process preceding any regulation and the fact
that any provision, regardless of the domain,
has as main purpose social order, which is
made by attempting to create an equilibrium
between holders of various conflicting
interests. In the field of copyright, the norm is
the expression of an attempt to maintain the
interests of authors/copyright holders in order,
on one hand, with the interests of the general
public, of access to culture, on the other hand.
The above mentioned tension relation
represent, in fact, the legal relationship
regulated by the norm, the subjects remaining
the same, regardless of whether or not they are
expressly highlighted. There is, without a
doubt, a relation between owners and the
object of the protection, namely protectable or
protected works, but the copyright regulation
itself is the prioritized expression of the
relation between authors and the rest of the

people, categorized as being the general
public, society in general, if you will, whose
interest is of access to information/culture is
contrary (somewhat and to a certain level) with
the interest of the author to protect that work
and narrow/limit the access to the work
without its consent.
Guaranteeing certain rights to a category of
subjects, for example to owners, will always
correspond with the existence of certain
obligations assigned to the other category of
subjects, the obligation to not reproduce a
protected work without the owner/author’s
permission, for example, actually being the
expression of the owner’s rights to authorize or
forbid the reproduction of said work. It is what
the doctrine considers to be an indissoluble
connection between the subjects of judicial
relation, manifested throughout the ongoing
judicial relationship.
In general, the norm goes into effect according
to certain situations, mostly determined, or at
least relatively determined. Outside of those
situations, the norm does not have effect,
respectively, the obligation cannot be imposed,
which leads to the birth of the corresponding
right – which can at least be accepted as a right
to non-conform to the norm.
It is easier to highlight these aspects in the
context of the limitations accepted by the
current legislation, and, if you take into
account the characteristics of the public
domain and the fact that its existence is
manifested just as any limitation of exercise
the exclusive rights, the same explanations can
also be used as regards to the right of access to
public domain works. The rule of symmetry
mentioned above is also applied to the public
domain. If you consider, for example, the
works that became part of the public domain as
a result of the expiration of the protection
period, we would be dealing with a norm that
indicates a protection up to a certain date, after
which the norm would cease to function in the
sense of the existence of certain rights over the
works. The inexistence of the patrimonial
rights actually represent the owners/author’
corresponding obligation to abstain from
exercising them, thus being confirmed the
correlative existence of the right of access to
these works.
But what is the right of access in the context of
a confusing regulation, which does not
emphasize it clearly? And what value does this
right have in the lack of obligations of correct
use of public domain works?
The correct use is actually a legal use, in the
context of guaranteeing right of access. With
exact reference to another type of work in the
public domain, different from the ones whose
protection period has expired, Yolanda
Eminescu noted, in 1987, regarding folklore
materials, that these should be used correctly
and exactly. It was mentioned the necessity of
limiting the usage, as well as the necessity to
“ban the deformation of folkloric works to
preserve, unaltered, this important legal
indissoluble fund of cultural identity of a
people.”
It’s most certainly the specific nature of
folkloric works that entails particular
discussions, but the common denominator
between any type of works in the public
domain sphere, is the fact that the inexistence
of rules of exercising the right of access
implicitly leads towards abusive forms of use
that restrain future uses, ultimately altering the
public domain fund.
3. The right of access and the technological
means of protection as an abusive form of
exercising the owners’ rights
In order to prevent and limit any actions on
protected works, to the benefit of the rights
holder, the possibility of using “efficient
technology” has been created, meaning
technologies that “allow control by the right
holders through application of an access
control or protection process, such as
encryption, scrambling or other transformation
of the work or other subject-matter or a copy
control mechanism.”
The definition of technological measures of
protection has been integrated at European
legislation through the Information Society
Directive4
:
"(...)“Technological measures” means any
technology, device or component that, in the
normal course of its operation, is designed to
prevent or restrict acts, in respect of works or
other subject-matter, which are not authorised
by the rightholder of any copyright or any
right related to copyright as provided for by
law or the sui generis right provided for in
Chapter III of Directive 96/9/EC.
Technological measures shall be deemed
“effective” where the use of a protected work

4
Art. 6, point 3 of Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001, on the
harmonization of certain aspects of copyright and related
rights in the information society

or other subject-matter is controlled by the
rightholders through application of an access
control or protection process, such as
encryption, scrambling or other
transformation of the work or other subject-
matter or a copy control mechanism, which
achieves the protection objective."
This type of technology meets the efficiency
conditions required by the European norm only
in the case in which the control is as efficient
as to ensure the achievement of the goal of
protection, namely the prevention and ban of
some unauthorized acts by the author/holder.
Basically, the possibility not only of a copy
control is created, but more importantly, a
control of access is created, equivalent with the
possibility to exercise the rights granted to
holders, exclusively, unlimitedly.
This type of technology allows, at any point,
abuses by the rightholders, to the disadvantage
of the users/public, with serious repercussions
over the availability that has to define public
domain works, in order to allow access to
culture, to information, ultimately stagnating
development, progress.
Point 4 of the same Article 6 from the
Directive, presents itself as an ‘attempt’ to
balance interests by so-called provisions meant
to protect the beneficiaries of the copyright
exceptions provided by the same directive,
however, without any of these provisions
being more than a simple recommendation, if
we consider the fact that neither one of these
provisions is supported by methods of sanction
of the non-conforming holder.5
"Member States shall take appropriate
measures to ensure that rightholders make
available to the beneficiary of an exception or
limitation provided for in national law in
accordance with Article 5(2)(a), (2)(c), (2)(d),
(2)(e), (3)(a), (3)(b) or (3)(e) the means of
benefiting from that exception or limitation, to
the extent necessary to benefit from that
exception or limitation and where that
beneficiary has legal access to the protected
work or subject-matter concerned.

5
References to Articles 5(2)(a), (2)(c), (2)(d), (2)(e),
(3)(a), (3)(b) or (3)(e) of Directive 2001/29/EC of the
European Parliament and of the Council of 22 May 2001
on the harmonization of certain aspects of copyright and
related rights in the information society, correspond to the
following exceptions: private reproductions, specific acts
of reproduction made by publicly accessible libraries,
educational establishments or museums, or by archives,
ephemeral reproductions that are transitional, for the
benefit of people with a disability, for the sole purpose of
illustration for teaching or scientific research.
A Member State may also take such measures
in respect of a beneficiary of an exception or
limitation provided for in accordance with
Article 5(2)(b), unless reproduction for private
use has already been made possible by
rightholders to the extent necessary to benefit
from the exception or limitation concerned and
in accordance with the provisions of Article
5(2)(b) and (5), without preventing
rightholders from adopting adequate measures
regarding the number of reproductions in
accordance with these provisions."
Therefore, although there are clear provisions6
that regulate the cases of violation of the
technical protection methods and there are
obligations addressed to efficiently protect
these instruments of control ("legal protection
of anti-circumvention measures"), there is no
obligations assigned to Member States in order
to guarantee the right of access for the
beneficiaries of the copyright exceptions, nor
are there any sanctions provided for the
abusive use of technical measures. And this is
largely because of the fact that the interests of
the two parties are not considered as needing
equal protection, an aspect that is also nuanced
by the preamble of the Directive, "(39) Such
exceptions or limitations should not inhibit the
use of technological measures or their
enforcement against circumvention."
The aspects above mentioned exclusively
nuance the situations of copyright exceptions
and especially of certain exceptions, through
precise identification, one also being able to
mention that the application through analogy
for other types of exceptions, which are not
specified in the European text, could not be
accepted. For these reasons, it cannot be
assumed that the text would apply to other
types of free uses that, even without being
identified as exceptions, have the same effects,
and we are particularly referring to the
examples of public domain work usage.
Particularly, we’re talking about what is
actually called “retelling a story” from public
domain, or about the situations in which
certain public domain works or fragments of
them, are taken over and integrated into
original works, or about the case of adapting
works from the public domain. Each of these is
an example of situation in which the public has
the right of access to the public domain work,

6
Art.6 pt.1, of Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the
rights in the information society, "Member States shall
provide adequate legal protection against the
circumvention of any effective technological measures"

as it does not carry exclusive rights and
because the access to it should be free,
therefore unrestricted. But this right of access
is only theoretical, since we cannot talk of its
actual exercising in the context of the
existence of technical protection measures, to
which the Member States have obliged
themselves to a legal and unconditioned
protection.
The situation deserves to be summed up – the
protection of technological measures needs to
be legal and the measures need to be efficient,
including through the sanction of any form of
violation/circumvention of TPM, whereas, as
far as the general public is concerned, Member
States are obliged to only take “appropriate
measures” and that only to some of the forms
of free use, which do not include, as I
mentioned, the use of public domain works,
but only those forms of use corresponding to
the exceptions noted in Article 6.
Legalizing TPM indisputably led to the
impossibility of enforcing the provisions
relating to copyright exceptions and
limitations, as prof. Lawrence Lessig,
correctly, classified it as a transposition of
“copyright abuse”, indeed referring
exclusively to fair-use. His assessment was
supported by the reality of many processes
initiated by owners, also being just as pertinent
referring to the well-known warning that
marks the beginning of any DVD or VHS
recording, through which the reproduction of
any part of said recording, without permission
from the producer, is strictly forbidden. This
example represents a blatant denial of the fair-
use doctrine, of what is represented by the
copyright exceptions and limitations,
implicitly of the notion of private copy, of user
and consumer rights, of the possible public
domain components, and of society in general.
The American correspondent of the
aforementioned European Directive is the
Millennium Copyright Act, at least as far as
the technological protection means are
concerned, and the means of sanction any
forms of circumvention.
"Section 1201(a)(1) of the Copyright Act
prohibits the act of "circumvent[ing] a
technological measure that effectively controls
access to a work," including, for example, by-
passing password protection or encryption
intended to restrict access to paying customers.
Section 1201(a)(2) prohibits the manufacture
or sale of "any technology, product, service,
device, component, or part thereof' primarily
designed for the purpose of circumventing
access controls on copyrighted works.
Additionally, § 1202(b) prohibits the
manufacture or sale of products, devices or
services primarily designed to circumvent "a
technological measure that effectively protects
a right of a copyright owner"-for example, a
technological measure intended to prevent
reproduction of a copyrighted work. The
authors of Fair's Fair7
said, "the ban against
circumvention devices can prevent many users
from making a fair use of protected works. The
problem illustrates a more general threat. A
legal prohibition against circumventing the
protective measures adopted by copyright
owners leaves those owners with virtually
absolute control over the terms of use."
There are currently DVDs or e-books sold with
restricted access, although many of them
contain collections or public domain works,
such as stories whose protection period has
expired, or legends belonging to traditional
knowledge or folklore8
.
Inevitably, the issue of the existence or not of a
right of access is, most of the time, unresolved
in these situations because reference may be
made to the multitude of other free resources,
available as alternatives, and which allow, to
the same extent, the user’s access to public
domain works, such as the versions available
in public libraries. But the issue of the right of
access should not be studied from the
perspective of other alternative resources that
are available. Encrypting an e-book will
represent in any case an abusive form of use of
the public domain works it contains and this is
because, by applying technological protection
methods, the nature of these free materials
change, through their restriction.
In all these cases, we obviously also need to
consider the interest of the owner who uses
those technological protection methods. Even
if, most times, these collections do not
represent aspects of originality and the only
valuable component resides in its public
domain material, it needs to be accepted that
there are also situations in which the owner’s
interest especially require protection, the most
obvious cases being those of adaptations, of

7
Robert C. Denicola, Fair’s Fair - An Argument for
Mandatory Disclosure, University of Nebraska, 2004
8
http://www.elefant.ro/ebooks/fictiune/literatura-
romana/literatura-romana-clasica/legende-populare-
romanesti-167551.html
http://www.polirom.ro/catalog/ebook/povestile-fratilor-
grimm-2572/redirect.html

the type of retelling, as well as of the public
domain works’ integration as part of original
works. Each of these shows, without a doubt,
particularities but the most important aspect,
and the most common, of these examples is the
fact that the right of access needs to be
guaranteed and, if the solutions to protect both
interests are not impossible to find, even in the
event in which there is not a clear divide
between the public domain material and the
original work9
.
Coming back on European ground, we have to
admit that, despite the provisions mentioned,
the recent jurisprudence has nuanced
interpretations of Directive 2001/29/EC that
are closer to what it could be called an
equilibrium of interests. The year 2014 meant
quite a lot if we consider the decision taken in
January 2014 by the European Court of
Justice, which decided that circumventing a
protection system may be lawful10
, from which
we hold:
1 "‘Technological measures’ within the
meaning of Article 6 may include
measures incorporated not only in
protected works themselves but also
in devices designed to allow access to
those works;
2 When determining whether measures
of that kind qualify for protection
pursuant to Article 6 where they have
the effect of preventing or restricting
not only acts which require the
rightholder’s authorisation pursuant
to that directive but also acts which
do not require such authorisation, a
national court must verify whether the
application of the measures complies
with the principle of proportionality
and, in particular, must consider
whether, in the current state of
technology, the former effect could be
achieved without producing the latter
effect or while producing it to a lesser
extent."

9
GPL licenses for open-source software have the
particularity of maintaining the source code available for
any other subsequent use. Similarly, the rightholders that
take over, in any way, public domain materials, should be
obliged to allow the access of public to that material, in a
format free of any other intervention, in order to ensure the
access is unrestricted.
10
Advocate General Eleanor Sharpston, Opinions in Case
C-355/12 Nintendo v PC Box, September 2013
http://curia.europa.eu/juris/document/document.jsf?docid=
141822&mode=req&pageIndex=1&dir=&occ=first&part=
1&text=&doclang=EN&cid=1931439
http://curia.europa.eu/juris/document/document_print.jsf?d
oclang=EN&text=&pageIndex=1&part=1&mode=req&do
cid=141822&occ=first&dir=&cid=1931439
It’s interesting to study the problem of
protecting technologies created not only to
prevent copying, but to restrict interoperability
as well, being a way to emphasize the fact that
technologies applied by owners are not
protected unconditionally, but only if they
conform with the definitions provided by
law11
. A correct interpretation leads to the
conclusion that, beyond the limitations
expressly provided by the law, one cannot talk
about a correct/legal use, the protection, as a
final effect, being unobtainable. If the
technological protection measures have the
effect of restriction of those acts that are not
subject to holder authorization (by effect of the
law), these TPM are obviously examples of
abusive TPM, whose violation can be
considered legal.
Indeed,
CJEU ruled that the manufacturer of
the console is protected against that
circumvention only in the case where the
protection measures seek to prevent illegal use
of videogames, thus being understood that
legal protection cannot be ensured to other
forms of restriction.
Legal protection cannot be granted to
restrictions aiming at the public domain
component, as these type of measures also
have the purpose of forbidding/limiting some
forms of use that do not need the permission of
the authors/owners.
4. Other dangers: Information society and
the impact on the public domain sphere.
The public domain is diverse in its content,
works whose protection period has expired
being only one of the categories that belong to
this sphere. Another category is that of
materials that, in accordance with the internal
or international legislation, cannot be protected
by copyright12
.

11
Article 6 of Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the
rights in the information society – “Technological
measures” means any technology, device or component
that, in the normal course of its operation, is designed to
prevent or restrict acts, in respect of works or other
subject-matter, which are not authorized by the
rightholder.
12
This paper exclusively takes into account the public
domain related to copyright, but, evidently, any work or
material that does not carry exclusive rights and that can
be freely used, regardless of their rights, trade secrets,

These types of materials are, most of the times,
located outside of copyright protection, as
effect, for example, of provisions that establish
the exemption from protection of ideas,
mathematical concepts and formulas, theories,
procedures and methods of function.
Mathematical formulas, concepts and
functioning methods, are, in accordance with
the legislation corresponding to copyright,
types of materials that are included in the
public domain sphere, naturally, from their
very development.
But as diverse as the sphere of public domain
is, it is just as fluctuant, certain legislative
changes or court decision leading to a
narrowing of the public domain sphere, by
considering some material/information, which
are by nature excluded from protection, as
being protectable, such as functioning
methods, or simple data.
I’m referring to the case of Oracle v. Google13
,
the most recent decision regarding them stating
that “the APIs are protected by copyright, both
in regards to their source code, as well as the
structure, sequence and organization of the
Java library (API packages).”
Taking into account their component14
, and the
purpose for which these APIs were used in
programming, objectively established as being
– the insurance of interoperability, it goes
without saying that this decision has the
potential to significantly affect the public
domain sphere, by considering these
materials/information (if we can call them that)
as being protectable by copyright.
This decision would affect everything open-
source stands for, and innovation in general,
the EFF 15
mentioning that the freedom to
reimplement and extend existing APIs
represents the key to progress both in the
development of hardware products, as well as
software. With a higher emphasis on the need
for software compatibility, the following

patents, etc., falls in the sphere of what the public domain
is.
13
U.S. appeals court decided Oracle could copyright parts
of the Java programming language, which Google used to
design its Android smartphone operating system - see the
full text of the decision:
https://www.eff.org/files/2014/11/10/oracle_v_google_13-
1021.opinion.5-7-2014.1.pdf
14
All SSO details/components – structure, sequence and
organization – lack protection, as they represent
functioning methods
15
https://www.eff.org/deeplinks/2014/05/dangerous-
ruling-oracle-v-google-federal-circuit-reverses-sensible-
lower-court
explanations are offered: “When programmers
can freely reimplement or reverse engineer an
API without the need to negotiate a costly
license or risk a lawsuit, they can create
compatible software that the interface’s
original creator might never have envisioned
or had the resources to create. Moreover,
compatible APIs enable people to switch
platforms and services freely, and to find
software that meets their needs regardless of
what browser or operating system they use.”
Pamela Samuelson recently said16
, referring
directly to the dispute between Google and
Oracle:
” (…) a computer program designed to be
compatible with another program must
conform precisely to the API of the first
program which establishes rules about how
other programs must send and receive
information so that the two programs can work
together to execute specific tasks“.
“(…) once that the API exists, it becomes a
constraint on the design of follow-on programs
developed to interoperate with it.”
The digital era is supposed to be favorable to
the spread of information and innovation in
general, but also bears, as we’ve seen, multiple
threats to the public domain.
5. Conclusions
An excessive control of copyright actually
means a denial of the citizens’ right of access
to the public domain, a denial of the
importance of public domain in general and a
denial of the special role the public domain has
in innovation.
The context of the existence of technological
protection methods and of some confusing
regulations of what a legal use of the public
domain means, has lead to numerous actions,
such as the Communia Association, which
issued, in 2014, a set of recommendations,
from which we can mention the ones with
implications involving the public domain17
.
"Pt.6 Any false or misleading attempt to
misappropriate Public Domain material must
be declared unlawful. False or misleading

16
Pamela Samuelson, Are APIs Patent or Copyright
Subject Matter?,
http://patentlyo.com/patent/2014/05/copyright-subject-
matter.html, May 2014
17
http://www.communia-
association.org/recommendations-2/

attempts to claim exclusivity over Public
Domain material must be sanctioned.In order
to preserve the integrity of the Public Domain
and protect users of Public Domain material
from inaccurate and deceitful representations,
any false or misleading attempts to claim
exclusivity over Public Domain material must
be declared unlawful. There must be a system
of legal recourse that allows members of the
public to get sanctions imposed on anyone
attempting to misappropriate Public Domain
works.
Pt. 7 The Public Domain needs to be protected
from the adverse effects of Technical
Protection Measures. Circumvention of TPMs
must be allowed when exercising user rights
created by Exceptions and Limitations or when
using Public Domain works. The deployment
of TPMs to hinder or impede privileged uses of
a protected work or access to public domain
material must be sanctioned. Technical
Protection Measures such as Digital Rights
Management systems can have adverse effects
on the Public Domain. Access restrictions
imposed on works can remain in effect even
after a work has passed into the public domain
and over time Protections Measures can
become orphaned making access to protected
works impossible. Most current TPM
‘solutions’ do not take into account user rights
created by Exceptions and Limitations thereby
limiting their effectiveness and undermining
the inherent checks and balances of the
copyright system. Given the above,
circumvention of TPMs must be allowed when
exercising user rights created by Exceptions
and Limitations or when using Public Domain
works."
References
• David Lange, Reimagining the Public Domain, 66 Law and Contemporary Problems, Winter 2003, p.
463-484
• Pamela Samuelson, Are APIs Patent or Copyright Subject Matter?, http://patentlyo.com/, May 2014
• Advocate General Eleanor Sharpston, Opinions in Case C-355/12 Nintendo v PC Box,
http://curia.europa.eu/, September 2013
• Robert C. Denicola, Fair’s Fair - An Argument for Mandatory Disclosure, University of Nebraska, 2004
• World Intellectual Property Organization, Report on Public Domain, Seventeenth Session, Geneva,
December 2010

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