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The public domain is often a tug-of-war trophy between IPR and FOSS proponents. Prominent IP figures, such as Judge Richard Posner, argue that the public domain distinquishes IP from real property, and provides critical limitations to copyright and patent doctrine. FOSS advocates often accuse IP of “shrinking the public domain,” or equate their movement with somehow strengthening it. Professor Jane Ginsburg says such FOSS arguments cannot be made so simply. Who is right?
There may be one public domain with many definitions, or many public domains without clear definition! This can lead to confusion. If the problem of clarifying the public domain is impossible, society may find itself looking at a “comedy of the commons!!”
In a recent article, Professor Pamela Samuelson studies different conceptions of the public domain and gives valuable insights on how to crystalize certain definitions for policy discourse. Enriching Discourse On Public Domains, 55 Duke L.J. 783 (2006). Samuelson points out that the public domain is often referred to in the singular, indicating that there may only be one public domain. However, it may well be that scholars diverge in their definition of the public domain in different contexts.
Samuelson outlines a number of conceptions for the public domain and notes that they orbit around three themes: (1) the legal status of information, (2) freedoms to use information, (3) accessibility of information... along a continuum. Proliferation of definitions for the public domain resulted, according to Samuelson, in part because of fears regarding the fate of freely available information resources and philosophical differences of the public domain.
Of the kinds of public domain discussed, only one falls into a formal legal framework. This public domain extends from the Constitution and sets limitations to IPRs; granting protection only for “limited times” and setting standards for obtaining them. The constitutional public domain entails productions whose IP terms have expired, or do not meet the requirements of copyright and patent law. What is in this public domain must stay there, and can be used without permission and without charge.
Samuelson writes: …the Founders intended to build protections of the public domain into the Constitution by providing that exclusive rights can only be granted to "authors" and "inventors," and then only for "limited times." Compilations of data that lack a modicum of creativity are... not just unprotected by the Copyright Act... but unprotectable as a matter of constitutional law... In ... Deere, the Supreme Court spoke of Article I, Sec 8, Clause 8 ...as both "a grant of power and a limitation." The Court indicated that "[i]nnovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of... useful Arts."' Congress may also "not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain." When talking about IP policy, the constitutional definition of public domain finds natural relevance.
Further, the constitutional concept of public domain is supported in the common law. Samuelson writes: “...many judicial opinions had discussed the public domain as the status of informational works following expiration or invalidation of IPRs or as the consequence of a claimant's failure to satisfy substantive or procedural requirements for IP protection.” I’m not aware of any judicial decisions where non-constitutional definitions of the public domain have been asserted to abridge IPRs. Neither would I think such would be advisable.
Some variations of the public domain, such as those espoused by Professor Yochai Benkler, which highlight “free” uses of information, can distort legal and policy issues. Samuelson urges consciousness of the discourse's context when talking about the public domain for this reason. When addressed to a general audience, Professor Benkler's use of public domain to signify a domain of free uses of information resources seems sensible. However, in legal discourse, this use of public domain obscures more than it illuminates various legal status concepts that I believe legal scholars should try to keep distinct. Public domain definitions that highlight open source and Creative Commons (CC) licenses may be altogether inappropriate. This is a fundemental disagreement between Samuelson, perhaps the most convinving of copyright "critics," and others including Boyle, Cohen, Lessig and Moglen.I will not in future work characterize open source or CC-licensed content as public domain because I regard contractually constructed commons as a more appropriate moniker for this class of information resources. Open source and CC-licensed content may, of course, serve some of the same values as IP-free public domain resources, but they are significantly encumbered by underlying IP rights and license terms...
A person who believes that open source software is public domain software might decide to make a proprietary derivative of the software and then be surprised and dismayed when a lawyer for the open source software developer threatens to sue for copyright infringement and breach of the open source license. A person who believes that certain fair use activities are public domain might want to start a business selling place-shifting services to the public, only to encounter the threat of a lawsuit by the recording industry...
There are economic reasons why open source and CC licenses can give false sense of “freedom” but should not be equated to the public domain: they can impose transaction costs and restrictions as much as any copyright, while not providing the kind of use and access enabled by the constitutional public domain. ...CC licenses impose significant costs on users of informational works. She (Professor Elkin-Koren) worries about the unintended consequences for IP-free public domains that will flow from CC's "licensing platform, [which] relies heavily on a proprietary system and on viral contracts." By adopting this licensing platform, CC strengthens arguments made by proprietary vendors that the latters' viral license terms restricting fair and other socially valuable uses should be enforced. An IP-free public domain, in contrast, lowers transactions costs and allows follow-on creators to use preexisting works far more broadly.... Hence, the constitutional public domain, that which balances between IPR protection and freely available information, may be more conducive towards economic freedoms than open source and CC.
So which “public domain” wins?
Samuelson is right that different conceptions of public domain need to be distiniquished per context; thus to equate open source, the Creative Commons, or even the commons, with public domain for a general audience makes things interesting, but does not help understanding for policy. Of the options for defining public domain laid out by Samuelson, all have value and enrich societal discourse. However, when talking about IPR policy, the constitutional public domain, the one our founders set out to limit IPRs at the same time that they gave us copyrights and patents, may be the most logical, proper and relevant public domain.
posted by Noel Le @ 9:00 AM | Academia, Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA, DRM & Watermarks, etc., Free Culture Movement, Patents
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