Contribution to the Understanding of the Public Domain


The purpose of this article is to understand how the public domain has been construed by the Courts. In the first part of the article, the different ways the public domain has been qualified and construed by scholars are briefly sketched out- for descriptive and introductory purposes to the analyzed cases law. In light of the different ways the public domain has been qualified and characterized by scholars, in the second part of the article, several well-known and often-quoted cases law are analyzed. In this article, it is argued that the public domain, contrary to authoritative schools of thought, is not construed - by Courts - as a rule that determines, in a “binary fashion”, which behaviours “will be coerced by the public power and which behaviours will be allowed.” It is argued – grounding claims on reading the analyzed cases law – that the public domain is used and construed by courts as both a status of the mere negative aspects of IPRs and as an argument (for rhetorical - strictu senso - purposes) that heralds the underlying interest of the “public” in accessing “information”. In light of these findings, this article suggests that it is possible to start building a theory that would render the public domain more apt to make legally relevant the underlying interest (in the access of “information”) if construed not as a rule, but as an interpretative principle (a là Dworkin) that “states a reason that argues in one direction, but does not necessitate a particular decision” and that, once relevant, courts would have to take into account “as a consideration inclining in one direction [rather than] another.”


Intellectual Property Law

Date of this Version

August 2006