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The public domain is regarded by some as the balancing and constraining counterpart to copyright policy. But where does the public domain come from, and how much due consideration must copyright give it?
In a new working paper, Professor Jane Ginsburg remarks on the misconception in thinking of copyright as some kind of “subtraction from the public domain,” that copyright will shrink or even eliminate the public domain if taken too far. Une Chose Publique? The Author's Domain and the Public Domain in Early British, French and US Copyright Law." Cambridge Law Journal, November 2006. Professor Ginsburg shows that current reliance on the public domain to fight perceived over-expansion of copyright policy carries flawed assumptions on the history of the public domain. Her observations point to yet another instance where arguments against IPRs make analytical mistakes as they seek over-simplification. If we speak of a grab, we imply that copyright was seized from somewhere. So whence, in this account, was copyright wrested? From the public domain.
The public domain is all the rage. It is invoked to breach copyright’s encroaching enclosure of what one might grandiloquently call the cultural commons of the mind. The heralds of our “remix culture” deploy the public domain...
What provokes this lecture… are what I perceive to be anachronistic assertions of the “immemorial” quality of today’s aggressive concept of the public domain. Some of these arguments look to me like the Roche-Bobois “provincial” line of furniture: modern pieces with nicks and wormholes introduced to impart antique appeal.
In her research on the history of the public domain, Professor Ginsburg even uncovers early primitive DRM solutions. ...in the days of the medieval scriptoria, copies were few and readers almost as scarce. Control over access to the physical copy limited the number of copies that could be made. And even then, some monasteries resorted to a kind of technological measure to prevent unauthorized access and copying: they chained the books to the walls. (The hooks and chains can still be seen at the monastery of Poblet in Spain.) Was this old form of DRM a detraction from the public domain. Not so simple...
posted by Noel Le @ 12:03 AM | Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA
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