UC Berkeley

This paper seeks to explore how the implementation of open access licences onto recordings and other forms of digital performance of creative works which have entered the public domain, complements the notion of digital commons. The paper starts from the assumption that there are types of creative works (i.e. music works, theatre plays, etc) whose effective dedication to the public domain for the benefit of the public at large would never reach the full status of “commons” if digitised performances of these works were not disseminated under open access licences (e.g., Creative Commons’). The introduction draws on the assumption that creative works which give rise to a huge stock of the public domain in certain fields of creativity would not become available to the public in digital formats (at least for free) without the necessary intermediation of performers and producers of audio and video recordings. From this perspective, there would be no lawful way for the public at large to enjoy for free digital items embodying creative works such as a Bach’s suite, a Brahms’s symphony or a Shakespeare’s play, if certain kinds of music and theatre performers and/or recording producers did not release their digital performances and recordings using open access licences. The paper seeks to explain why the implementation of these licences to the management of copyright-related rights for the achievement of an effective dedication of certain works in the public domain to the digital commons is of very high relevance. It is argued that, at least in civil law (i.e. droit d’auteur) systems, newly created works of art are copyright protected by default and fall into the public domain only after expiration of the protection term of 70 years post mortem autoris. Unlike U.S. law, droit d’auteur systems do not seem to endorse and confer validity upon copyright licences which aim to make new works available in the public domain immediately, through a relinquishment in perpetuity of all present and future rights under copyright law by the author. By considering some examples of digital platforms making use of open access licences for the dissemination of music works adopted by both music performers and recording producers, the paper shows that, as European digital copyright laws stand, the mostly evident and fruitful use of open access licences for the building of digital commons in the field of creative works concern old works whose copyright protection is expired and whose copying, dissemination and, possibly, re-use has been preventively authorised on the grounds of a “copyleft” licence. The paper concludes that public bodies and other entities that institutionally pursue the policy objective of building platforms and repositories of digital commons should promote the implementation of open access licences by holders of copyright-related rights (e.g., educational institutions, young performers and ensembles, virtual recording labels, etc) and provide incentives to make their digital works available to the public for purposes other than that of making an immediate profit from the sale/licensing of digitised items.