Commons e diritti d'autore

The issue of «Commons and copyrights» needs unification of meanings and contexts, traceable in the system of the sources of European copyright, and in particular in the Bern Convention for the Protection of Literary and Artistic Works. An interrelation between the concepts of «commons» and «copyright» is identifiable in the unwritten tradition of cultural expressions (TCEs): traditional works and practices that represent all those manifestations of the culture of communities and social groups, whose spread and survival is often entrusted to dynamics of intergenerational transmission, mainly in an oral form. They are works that live in a kind of limbo: it is rare to know the original name of the author, and often the beneficiaries are ignored, without considering that it is assumed that they have already fallen into the public domain, without a given time to refer to in case of authorial protection. The study addresses the issue of protection of folklore works in the Berne Union Convention, where one can find regulations to identify the subjects entitled to exercise rights for works of unknown authors, and in other sources of copyright. The qualification of the concept of TCE as intellectual work in indistinct ownership, hardly protectable by copyright, lead one to take into account additional paths that provide a management model based on the concept of «commons of knowledge» and to present a solution which recognizes to the communities the membership and will grant them their rights. To recognize the expressions of folklore as commons of knowledge will allow a reasonable collective use that does not affect the transmission of this intangible heritage and that serves to prevent inappropriate or unauthorized use by persons outside the contexts and communities. The recent guidelines of the European and national policies indulge to consider the collective and social dimension of heritage in terms of the possible interactions between the various parties concerned, namely development models in which communities play a key role, not only as guardians of the common values , but also mediator in and of cultural diversity.