Sommario:

1. Introduction - 2. The relationship between commons and property - 2.1. Comparison of economic and legal theory - 3. Crisis of the linear property model - 3.1. The incidence of social function - 4. Evolutionary profiles of contractual models and circulation of knowledge on the net - 4.1. Legal design and Creative Commons model - 5. Conclusion - NOTE

Taking inspiration from George Bernard Shaw‘s famous reflection “if you have an apple and I have an apple and we exchange these apples, then you and I will still each have one apple; but if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas”, this essay aims to analyze the category of commons in comparison to intellectual property law (rectius, copyright law), in the European framework of reference. Commons is elected as a leitmotif of this analysis, focused on knowledge as a common immaterial good (id est, intellectual and creative works, scientific product et similia), traditionally considered as intellectual property right but radically changing in the context of the new information society, thanks to digitization [1]. Then, this paper is focused on potentials and limits of the legal instruments of copyright and, subsequently, the development of new models of contracts on the net. From this perspective, it could ensure the difficult balance between ius excludendi and ius utendi which constitutes the primary objective of a modern intellectual property law. In particular, the focus is on the implementation of open access principles, through the contract: the most flexible instrument to evolve the system. Considering the copyright directive transposition, we should analyze the legal framework of reference and elaborate best practices and new contract models [2].

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Considering so, the dialectical relationship between goods and property clearly emerges, which raises the question whether, in the perspective of reform of Book III of the Civil Code, it is necessary to deal «in primo luogo della teoria della proprietà o della teoria dei beni» [3]. If on the one hand it is certainly necessary to reflect on the notion of goods in the legal sense, on their use and to what extent this can affect the institution of property, on the other hand it is necessary to rethink the meaning of the very structure of property, handed down to us and rooted in our legal culture as a subjective right par excellence, characterized by the typical characteristics of real rights: absoluteness, fullness and exclusivity. The relationship between goods and property reverberates and the necessary relationality between goods and person is realized, in fact, through the private graft. Already a few years after the entry into force of the new Code in 1942, but above all following the strong acceleration given by the advent of the Constitution, a few years later, the best doctrine has shifted the center of gravity of this relationality between goods and people in the egalitarian and solidaristic dimension of the codified property right [4], aligning it with the principles enshrined in articles 2 and 3 of the Italian Constitution [5]. As authoritatively argued, if property is nothing but the particular configuration of the subject’s relationship with the thing, such a change of perspective would seem to endorse the introduction of the new category of the commons, emancipated from exclusionary individualism and open to new horizons of inclusion and belonging. In other words, the acceptance of the category in question represents the only way capable of breaking [6], from within, the monolithic property block [7]. Since such goods do not allow discrimination in access and imply a total inclusion in fruition, the social function of property enshrined in our fundamental chart, through them, finally would be fully implemented [8]. In this perspective, article 42 constitutes the constitutional reference point, as well as the interpretative canon, of the code discipline of the regime to which the goods belong. From the lens of the European Union, the other pole towards which to tend the interpretative tension is to be traced back to art. 17 of the Charter of Fundamental Rights of the European Union. [continua ..]

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Today, dominant economic definition of commons is due to the extraordinary study of Elinor Ostrom, according to which «i commons sono risorse materiali o immateriali condivise, ovvero risorse che tendono a essere non esclusive e non rivali, e che quindi sono fruite (o prodotte) tendenzialmente da comunità più o meno ampie» [12]. On the other hand, the legal conception of common is strongly influenced by economic thought, although the doctrine has not yet come to a univocal definition, at least in Italy. Broadening the lens of the analysis, it is possible to observe how the studies on the commons that have developed on the international level during the last century have had a remarkable echo also in the Italian legal reflection. In our country there have been, in fact, interesting contributions of an interdisciplinary nature [13], as well as a wide literature that has been formed in the economic field [14]. Legal literature is the most substantial [15]. It winds along critical lines of the right to property, as well as the classical theory of goods, and is inserted – giving it, indeed, new vigor – in that theoretical strand that over the years has been attentat of the last century had started a profound review of some cardinal institutions of civil law, starting from the right of property, then coming to reconsider the classic dichotomy public goods aut private goods [16]. The thing capable of forming the object of rights is only that which can be a source of utility and object of appropriation [17], likely to become part of the assets of a person, natural or legal, possible object of exchange for their value. In this last regard, the juridical notion of good does not coincide with the naturalistic but economic one. To relate economic and legal theory is therefore equivalent to relating the concepts of good and utility [18]. In economics the term good designates the quid that satisfies a need of an individual, which in turn would constitute the quid that feels that need to be satisfied. This explains the phenomenon of the movement of goods, the possible restrictions of which derive from reasons that are not economic, but legal. As is well known, in the last century the legal system has largely accepted the new and pressing demands of the economic system and this has led to a considerable expansion of the notion of good. From this perspective, the systematic placement of art. 810 [continua ..]

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The critique of the proprietary model is part of a broader and more articulated doctrinal debate, which moves from the attempt to disintegrate the granitic unity of the institute, through the full implementation of the new principles and values expressed by the Constitution [23]. Since the passing years [24], the discussion has focused on the «dissociazione tra proprietà e gestione, in forme che mirino a risocializzare l’economia con riferimento a beni, come quelli comuni, che presentano legami con esigenze vitali dell’uomo» [25]. In the last instance, it was to separate the economic-social function of the good from the legal title of the property, or to operate a split, in antithesis to the system of the civil code of 1942 focused on the rigid belonging owner, between ownership and management of the property in property [26]. This change of perspective led to an abandonment in those years of the rigid dogmatics of a positivistic matrix, inaugurating an advanced anti-formalist reflection. The result was a radical rethinking of the classical institutes of civil law, with an ever-increasing attention to the right of jurisprudential source, to be inscribed within the framework of the constitutional design. Evidently, one of the first institutes to suffer the effects was precisely property, the best product of nineteenth-century legal positivism. Its full and exclusive individual belonging was immediately questioned, shifting the visual angle to the more markedly relational aspects that arise by virtue of it, which are established between individual and good, which are destined to develop between individuals themselves [27]. Historically, the legal institution of private property represented, in its transposition into the Civil Code of 1942, the synthesis of a whole era in which the nascent bourgeois class had been able to affirm the sacredness and inviolability of proprietary law. Conversely, all other proprietary forms – including collective ownership – were considered as mere relics of a past, which no utility could have unfolded in the present time, in a radically changed economic and industrial system [28]. Around the middle of the last century, the Constitution of the Republic enters the scene and the first veils of the original sacredness of the institute begin to fall: the «primato politico e culturale che la cultura giuridica borghese le aveva sempre [continua ..]

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In art. 42 Cost. the formula that «la proprietà è pubblica o privata» is carved in a lapidary way. Everything that does not fall within the two poles of public or private remains wrapped in a cone of shadow. Nevertheless, through the consideration of the interests that converge on the goods and the utilities [39] they express (to use Pugliatti’s words), as well as the limitations that because of these can compress the right to property, the unitary concept of private property and its primitive character of absoluteness enter crisis. Proprietary regimes can vary according to pursued interests. The link, previously very close, almost intangible, between the interest of the private individual and the power to satisfy him unconditionally through the powers of fuition and disposition of his good is broken. In this framework, the functional homogeneity of the good would be possible only in theory, but always denied by practice, since, following an inferential reasoning, the functions are instead multiple and heterogeneous [40]. The guarantee of private property and its irrepressibility is given by Article 42 of the Italian Constitution, which in its second paragraph provides: «[l]a proprietà privata è riconosciuta e garantita dalla legge». The protection of the legal system is therefore implemented by means of the instrument of the legal reserve. Now, here it is interesting to frame the institute within the constitutional dictate and weld it to the discourse on the commons, highlighting the impossibility of a flat vision with respect to the proprietary scheme. The reference is to the functionalization of private property in the social sense: article 42 with respect to property requires the legislator to «assicurarne la funzione sociale e di renderla accessibile a tutti». It is easy to grasp in this last opening of accessibility, so wide to encompass the entire horizon of possible subjectivities, a clear projection of the principle of equality, enshrined in art. 3 Cost., in its substantial declination (paragraph 2). In this framework, the Rodotà Commission, in outlining the regime of belonging to the common goods, tries to implement the constitutional dictate so that the articulation of the law goes beyond property, but without exceeding it, reconstructing the discourse around the common goods on an objective functional criterion. The emphasis is no longer on the owner, but [continua ..]

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At this point of analysis, it is clear how the three ideal terms of theorical construction can be combined. The three terms are: commons, open access and contract. We have dedicated an in-depth analysis to commons in the previous paragraphs. Proceeding in order, Open Access means an open mechanism by which some contents are digitized and made usable by an indeterminate series of subjects, free of charge and just with the aid of an Internet connection. In this perspective, Open Access creates a common good: a scientific article, an essay, a data collection, but also a poem or a piece of music, is made available to the community, so that everyone can freely dispose of it [55]. The characteristic trait of this kind of common good, thus coming into existence on the internet and free to circulate in it, rests in the fact that it is not consumable, it is not rival, it does not produce conflict in its use. In other words, the use of a subject does not lead to the well-known tragedy of the common goods [56], or the risk of impoverishment that implies the non-use by another subject, but rather multiplies the potential for exploitation and expansion of the good itself. The models for implementing the principles of open access, known to date, aimed at ensuring their effectiveness are the Green Road, which is based on the so-called self-archiving, and the Gold Road, instead based on the so-called author pays-model. The action of the European Union fits into this line, which stands out for its strong activism in this sector and has been supporting a principle of considerable scope for several years now. Through recommendations from the Commission and a substantial Impact Assessment, it established that the results of scientific research conducted through the use of public resources must be made usable by the community and, therefore, imperatively subject to a regime of open (free) access [57]. This strong position taken by the Commission strengthens the connection between common goods and free access, shifting the angle of view: the outcome of a study conducted with public funds can be said to be an common good ab origine. A careful observation does not escape the fact that this principle is destined to have a disruptive impact on contractual practice, within the perimeter of the European digital single market [58]. Lastly, the third ideal term: the contract. It is immediately evident that the necessary compliance with the obligation to make [continua ..]

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One of these legal instruments is undoubtedly represented by legal design. In particular, the way proposed is the application and implementation of legal design, as a possible virtuous model for conveying and communicating rules. Recently, this methodology has been greatly developed through the use of new technologies in the digital environment. Creative Commons (CC) Licenses are an excellent successful application of these instruments. We are sure that this model can be replicated equally successfully for other cases [64]. The Creative Commons (CC) Licenses are among the first examples of multi-layered notices: the traditional license in “legalese” (called the “Legal Code”) is accompanied by the “Common deed”, id est a more user-friendly version of the license. From the Common deed is always possible to have a quick access to the full license. Furthermore, a third layer complement the system of the CC Licenses, making them machine-readable [65]. This model would be a modular design solution building from best information design practices, such as design patterns aimed at conveying the information in a transparent way [66]. In this perspective, the concept of contract drafting could be replaced by that of contract design, where strategic choices about the drivers and goals of collaboration merge with business and legal knowledge about how to maximize the chances of success and minimize risks and disputes [67].

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We started with an in-depth reflection on the legal and economic meaning of property, probing the two existing categories of public and private property, to delineate a third kind where these prove insufficient to exhaust all possible forms of belonging. In light of the social function of property rights, it is an indispensable prerequisite for the analysis of the commons. The new paradigms of circularity and sustainability offer the conceptual framework within which to develop the analysis according to new perspectives, as they go beyond the logic of the classically understood market, especially with regard to new contractual models. They constitute an extremely interesting conceptual laboratory and represent the starting points to develop new lines of evolution, thanks to new technologies and legal design. The latter seems capable of implementing the principles of transparency, inclusiveness and open access, placing the person at the center according to an anthropocentric view[68]. Furthermore, a correct use of legal design would allow for better access to justice, in a double meaning: greater awareness of the content of the contract for the parties who appeal to the judge in the event of a dispute and, viceversa, less burden for the justice system if disputes are avoided ex ante, thanks to a more effective communication of the rights and duties of the contractual parties.

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