Two weeks ago the First Berlin Symposium on Internet and Society took place in Berlin, celebrating the opening of the Alexander von Humboldt Institute for Internet and Society. Specifically for this event I had prepared a paper on “The Digital Public Domain: Relevance and Regulation” (SSRN), which was presented and then commented upon by Juan Carlos de Martin and Felix Stalder. Both provided very thoughtful criticsm and extensions to the paper, introducing an overall discussion that was very constructive and focused on the issues tackled in the paper.
While I have not managed to blog about the workshop so far, Anne-Catherine Lorrain from the COMMUNIA Association has now provided an extensive summary. There she documents why mapping the public domain empirically is a worthwhile exercise:
The empirical mapping of the public domain should help identifying more precisely the economic relevance of the public domain. The regulation framework applying to the public domain can produce some direct effects on the economy, and more particularly on innovation. As a matter of fact, businesses can suffer genuine legal uncertainty when it comes to identify what is protected by IP rights and what is not. The positive economic impact of content being in the public domain is sometimes already acknowledged in practice. For instance, some patent rights holders can decide to donate patentable inventions in order to create a pre-competitive market. Like the “adjustment process” (Schumpeter), the utility of the public domain to improve competition should be demonstrated, although the question about how this aspect should be echoed within legislation remains.
Besides, her summary features the pink sky over Berlin towards the end of the workshop:
Pink sunset on the Spree behind the Public Domain session speakers from left to right Martin Kretschmer, Leonhard Dobusch, Felix Stadler, Juan Carlos De Martin; picture: Anne-Catherine Lorrain
I can only thank Anne-Catherine very much for providing this great summary and endorse reading the whole transcript.
(leonhard)
governancexborders.com 
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November 8, 2011 at 19:48
Phil Mader
Hi Leonhard,
I read through the article on COMMUNIA, and it sounds like you had a very fruitful gathering. But I wonder about one thing. It says (apparently in connection with your paper) that it is “high time for policy and law makers to propose a positive definition of the Public Domain within the IP regulatory framework” … my question is: in an essentially transnational space like the Internet, which sorts of institution(s) or organisation(s) could possess the legitimacy to propose such definitions? It seems to me as if it is in the nature of the Internet/digital media to challenge the conceptions of intellectual property generated for previous hard-copy media, so the nation-state based institutions of yesteryear are questionable candidates. But who else, I wonder?
On an aside, I liked the image of the public domain as a “mirror” reflecting traditional copyright conceptions…
November 8, 2011 at 23:34
leonidobusch
In a way, I would argue, a positive definition of the public domain is what was provided by the epistemic community of copyright lawyers that have founded Creative Commons; of course, this is not “the” positive definition and there are many complications connected with Creative Commons but the context of its emergence could help addressing your question.
the more centralized legitimation vanishes, the more networked and less hierarchical forms of legitimizing – e.g. in digital communities – become important; but I have to admit that this is also only a first guess on my part…
and with regard to the mirror-metaphor I can only agree with your appreciation!