Expropriation from the common heritage

Some context for English speaking readers: on 15 January 2013 the French National Library (BnF) has signed public-private partnerships for the digitizing of 70000 ancient books (up to 1700) and 200,000 78 and 33 rpm sound recordings of patrimonial value. These partnerships, respectively with ProQuest and Believe, grant a 10 years exclusive commercial exploitation right for the firms and restrict communication to the public to the premises of the National library, except for 3500 books (5%). A strong opposition to these agreements has developed in France, requesting their cancellation. Almost all librarian and documentalists associations and a coalition of digital rights and free culture groups are particularly active.

Lionel Maurel signed with Daniel Bourrion, Mélanie Dulong de Rosnay and myself the opinion editorial Bientôt expropriés du patrimoine commun ? (“Soon expropriated from our common heritage?”) published yesterday in the daily newspaper Libération. He has published a very useful text to clarify the various terms used in the debate on the recent (and hopefully soon to be cancelled) public-private partnerships for the digitizing of public domain works belonging to the BnF collections. I wish to complement his analysis on the specific point of why we each of us would be truly dispossessed of a common heritage by the application of these agreements.

The reasoning is as follows: one must make explicit that each person has positive rights1 to our common heritage. To deny it would amount to count for nothing a fundamental share of human culture. One must then precise what is the nature of these rights of each person to our common heritage. It is useful to do it in relation to the three classical attributes of property: usus (the right to use some thing), abusus (the right to exclude someone from accessing or using it) and fructus (the right to benefit from it and fructify it).

The rights of each of us to the common heritage (the public domain, unappropriable entities such as ideas and voluntary commons) are of a specific nature that is not reducible to the conjunction of the three attributes of property:

  • Each person enjoys the usus and the fructus, can freely use the common heritage and draw all benefits from it (these benefits obviously are not only of an economic nature but include possible economic profit).
  • Nobody can exert abusus on the common heritage by depriving one from accessing and using it. This rule may suffer exceptions for physical objects that can be damaged by use, but suffer no exceptions for the digitized common heritage.

In this light, it appears that the BnF public-private partnership agreements constitute an expropriation from the common heritage applying to each of the three facets of rights. As soon as a work is digitized and until the ten years term of the exclusive rights, the agreements deprive each person of the essential part of usus2 and close to all of fructus. They attribute abusus (by these exclusive rights) to a specific moral person. It is not relevant here that this player is a private firm. When we used the word privatization, it is to describe a situation where privative rights are granted to any party.

Thus, do not let yourself being expropriated from our common heritage.

This post is also available in: French

  1. See this paper. []
  2. Access to the works in digital form over the Internet. []

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