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Peukert, Alexander --- "A doctrine of the public domain" [2019] ELECD 2161; in Drexl, Josef; Kamperman Sanders, Anselm (eds), "The Innovation Society and Intellectual Property" (Edward Elgar Publishing, 2019) 117

Book Title: The Innovation Society and Intellectual Property

Editor(s): Drexl, Josef; Kamperman Sanders, Anselm

Publisher: Edward Elgar Publishing

Section: Chapter 5

Section Title: A doctrine of the public domain

Author(s): Peukert, Alexander

Number of pages: 29

Abstract/Description:

This chapter asks whether there are any provisions or principles under German and EU law that protect the public domain from interference by the legislature, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyse this body of law from the outside, and - even more important - to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public domain on the other is countered. The overarching normative purpose is to develop a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.