Myths & Metaphors of Private Law and Intellectual Property
McGill University

Seminar "Domain / Domaine"


The Dynamics of Domain

        The word "domain" conjures images of power and space, of a feudal master lording over his lands, Mr and Mrs Andrews in Gainsborough's depiction, of a police officer or border guard working on behalf of the state or even of a self-satisfied Euchariste Moisan looking out from the rocking chair on his front porch. Power is vested in a "ruler", and that power extends over a space in an absolute manor. It is a beautiful, static picture.

Gainsborough's Mr and Mrs Andrews (1748-49). National Gallery, London. Source: Wikipedia     Yet the complexity of the concept of domain is such that this caricature is itself challenged. Medieval political philosophy distinguished between the direct dominium given over to a high-level lord or king, constituting perhaps little more than the ultimate reversionary control over a "domain", and the useful dominium, which comprised the kinds of direct control and use rights to the domain that were of functional economic value. Thus the idea of overlap or superimposition is already present in the idea of domain, and indeed is quite obviously well-manifested in the concept of estates in the common law. While the orientation of civil law property does not admit to this overlap in theory -- its ceremonial nod is to the absolute -- in a sense the fragmenting or dismembering of the private domain of ownership does necessarily create overlap. Patrimony is utterly complex. A right to fish salmon at Causapscal is a kind of exclusive domain long available only to a certain powerful elite, but the owner of the stream and adjacent river banks had other kinds of domain in the stream and the riverbed. The peace and harmony of the salmon fisher in hip waders is predicated on a multiplicity of domains.

Matapedia River at Causapscal. Photo: David Lametti     Indeed, the idea of overlapping domain is mapped across the distinction between the public and private spheres in all legal systems. The state in all its multi-headed forms has domain which differs in vocation from that of private actors, though even the state can be a private actor at times. Thus even resources held by the state can be in the private domain. Add the overlapping underlying claims of First Nations in many societies -- often under-defined in Western legal terms and unresolved, notably in Canada -- and the notion of overlap begins to look more like minestrone soup. Domain begins to look less like power and space, but more like accommodation and sharing, with an eye ultimately to function and functionality. Here good fences do not make good neighbours: rather, it is the porousness between domains, the sharing of power, and the recognition of the non-absolute that keeps the peace.

wine wine     We are increasing re-affirming this porousness with respect to traditional domains. Gainsborough's couple would, perhaps grudgingly, have to accept the rights of roamers to enjoy the beautiful vistas of their domain (provided that privacy is not affected). Public authorities increasingly regulate, curtail or otherwise channel uses in the private domain, ranging from protecting the environment to protecting the quality and quantity of a certain kind of cepage. (I'll take the nebbiolo over the sangiovese, thank you.)

     And hence the lesson for "new" domains: that of ideas, in the private and public domains of invention, creativity and market discourse. Domains and domini overlap and interact, living and feeding off of each other and spawning new works, in a peculiar kind of circular symbiosis. The modern netscapes -- bounded by internet domains -- are predicated in the value in attracting people to your domain (name) and not by excluding. James Penner's idea of property as a "gate" and not a wall resounds here: Google as a portal or gateway. Even the identity of the owner is becoming increasingly tied to the invitation to his, her or its domain.     Returning to Causapscal, perhaps the flow of the Matapedia River is a better metaphor for the concept of domain. The changing nature of domain caught up with the Matamajaw Fishing Club, with Gainsborough's couple, with 'Charis Moisan, as did intellectual domains in the face of the digital world and the globalized nature of the economy. Going with the flow of domain does not obliterate the concept of domain, but recognizes its dynamic qualities: relative and changing power, malleability and porousness, and functionality.

David Lametti    

Your comments / Vos commentaires (3)

poster for 'Les Bons Saucissons du Cochon Prodigue'    Portraits in the Gainsborough school, of the gentleman on his estate, master of all he surveys, typically have as their backdrop highly artificial fantasies of natural landscapes, which were inspired by earlier Italian paintings and brought very expensively to life by society landscapers such Capability Brown.

    However this conceit of a natural state “The rich man in his castle, the poor man at his gate, [God] made them, high or lowly. And ordered their estate” could never extend to intellectual property, where creation, effort, expenditure, and innovation was at the core of its claim to the status of property.

    Yet another fantasy of nature, cultivated in the same time period, fell easily into place: a Lockean account of the heroic author, creating purely by drawing on his or her own substance. Since she owns herself, her mind, her body, she is entitled to ownership of its emanations: artistic creations, inventions, the name associated with her reputation and manner of trading. Just like this turn of the (20th) century French advertising poster of a happy pig carving out its innards for our purchase and delectation.

    The pork poster now seems grotesque to us, while in its time and context it was presumably seen as natural and amusing. For us, it brings unpleasantly to mind the figures of the livestock farmer, the operator of the slaughterhouse, the meatpacker, the retail butcher.

    Similarly, the notion of the heroic author serves to elide the economic realities that shape contemporary intellectual property, in particular the key role of employers, multinational firms and the architects of montages financiers. Just as the Gainsborough school could celebrate the “natural relations of mastery” with a background of “nature” that elides the efforts of the hordes of labourers and gardeners (and the police).

Edmund Coates    
    "Domain" leaves a trace in the language of the modern common law of real property, in the form of "demesne", the medieval law French version of the word. When someone holds a freehold estate and is actually in occupation, it may be said (less commonly now than one hundred years ago) that he is "seised in his demesne as of fee". Typically, if the right in question was intangible, a person might be said to be seised of it, perhaps "seised in fee" if the right passes by inheritance, but not "in his demesne".

Roland pledges his fealty to Charlemagne; from a manuscript of a     The Latin word "dominium", which lies behind "domain", is not tied only to tangible things. For the Romans, "dominium" meant absolute power and control. In the feudal economy, however, this was subjected to an interesting nuance, in which "dominium" imported not only rights but also obligations. The lord or dominus had extensive rights over the land and subjects in his domain, but he also owed them obligations; in particular, to protect them, and to do justice between them. This feudal understanding is in many ways wholly archaic, but at the same time bears comparison with the "balancing" involved in modern intellectual property discourse, in particular the balance between private right and public domain. It also bears comparison more generally with modern theories of property, which may insist that the very idea of property carries obligations as well as rights.

Lionel Smith    
Painting from Manafi al-Hayawan (The Useful Animals), depicting Adam and Eve. From Maragh in Mongol Iran, 1294-99    So far the writers left one part out, which used to be a key part of the picture.


    In Europe and North America, a religious background used to pervasively color everyday life. Including relations between people, and between people and their property. As it still does in some Muslim countries today.

    To quote verses 26 and 28 in the King James version of the Bible: "And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth. [...] And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth".

    According to this picture, the lord of property was in a sense placed in the shoes of God or at the very least commissioned by God.

    However he or she was continuously reminded that they had received dominion, not created it themselves. And this entailed gratitude. It entailed duties to the poor and propertyless. It could also entail duties of acting as a steward of your property and of the earth, rather than as one that can create and destroy at will, with no thought for others or tomorrow.

    Due to this biblical inspiration, Canada itself was once known as a "dominion".

Matt Brenne