A Doctrine of the Public Domain

Forthcoming in: Josef Drexl (ed), The Innovation Society and Intellectual Property, EIPIN Series, Edward Elgar Publishing

31 Pages Posted: 11 Jan 2016

See all articles by Alexander Peukert

Alexander Peukert

Goethe University Frankfurt - Faculty of Law; Cluster of Excellence Normative Orders

Date Written: January 11, 2016

Abstract

The article, which summarizes key findings of my German book ‘Die Gemeinfreiheit. Begriff, Funktion, Dogmatik’ (‘The Public Domain: Theory, Function, Doctrine’), 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 analyze 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.

Keywords: public domain, intellectual property, copyright, trademark, patent, design, invalidity proceeding, license contract, German law, European law

Suggested Citation

Peukert, Alexander, A Doctrine of the Public Domain (January 11, 2016). Forthcoming in: Josef Drexl (ed), The Innovation Society and Intellectual Property, EIPIN Series, Edward Elgar Publishing. Available at SSRN: https://ssrn.com/abstract=2713757 or http://dx.doi.org/10.2139/ssrn.2713757

Alexander Peukert (Contact Author)

Goethe University Frankfurt - Faculty of Law ( email )

Frankfurt
Germany

Cluster of Excellence Normative Orders

Frankfurt
Germany

Register to save articles to
your library

Register

Paper statistics

Downloads
185
Abstract Views
757
rank
161,013
PlumX Metrics