Cultural Commons in the Digital Ecosystem

1The Pioneering Approach of Jurists from the Berkman Center for Internet and Society

1.1. A critique of the maximalist doctrine of intellectual property

At the end of the 20th century, an ancient debate on the social compromise on which the first copyright legislation was based came back, with force, to the forefront. It originated in the United States. The Berkman Center for Internet and Society (BCIS) was the nerve center of this intellectual battle.

Created in 1998 at Harvard Law School, it brought together lawyers from prestigious universities, specialists in intellectual property and digital law, among whom the most well known are Pamela Samuelson, James Boyle, Julie Cohen, Yochai Benkler and Jonathan Zittrain¹. Other prominent intellectual figures of the time include constitutional lawyer Lawrence Lessig, libertarian activists such as John Perry Barlow², co-founder of the Electronic Frontier Foundation³ and entrepreneurs such as Jimmy Wales, founder of Wikipedia. As Anne Bellon points out, within this place “two social universes, law professors and Internet activists, gathered around a critique of the evolution of intellectual property. They contributed to bringing about a counter-discourse that defends the information commons and the value of sharing” (Bellon 2017, p. 166, author’s translation).

The exchanges between these two communities, Internet experts and law professors, resulted in alliances around militant actions against the various laws on adapting copyright ...