Myths & Metaphors of Private Law and Intellectual Property
McGill University

Seminar "Domain / Domaine"


What is the domain of the ‘public domain’?

    The public domain as a legal term in copyright, and as a broader metaphor, has evolved to become a claim to space, to counter the overreach of intellectual property rights. Institutes, programs, legislative initiatives and public sector advocacy groups have coalesced around the term to cultivate what Boyle has called an environmentalism of the commons. But as successful environmental groups seem to have recognized, limiting one’s argument to the space not occupied concedes the point even before it is made. The space claimed by the public domain may be more like a cage than an ocean.

As Wendy Adams noted in the last session, we have become accustomed to a metaphor of property for intangibles that UPDmisdescribes the legal right. A domain of intangibles for the public continues the missed metaphor. In this piece I leave aside the ambiguities inherent in the term ‘public’, rooted in the idea public spheres that arose in the 18th century and focus instead on the idea of domain.

    The term ‘public domain’ suggests some power or dominium of the public over intellectual things. In copyright, these things are works whose copyright has expired or lapsed, whose authors have given the works to the public domain or works to which copyright never attached (works that were insufficiently original). Much as with real property, the public domain of copyright is populated by both works of outstanding genius (like a national park) and mind-numbingly utilitarian works (like Blow me industrially degraded lands that no one want to be liability for). Patented inventions whose term has expired and those that are either such important discoveries or too unoriginal to warrant patent protection also lie in the public domain. The public domain of trademarks could include almost anything forever if eventually associated with a ware or service, including the colour orange or the sound of a motorcycle. But a trademark may enter the public domain even if it’s merely invented, like Kleenex or linoleum. Private, non-commercial, educational, emergency and insubstantial uses all may qualify as public domain uses of works that are not in the public domain.

    What becomes clear then is that the public domain, as defined in relation to intellectual property law, is populated by a few spectacular and fundamental innovations, a mass ofLand banal creations and the non-commercial uses of IP artifacts that have not yet passed on to the other side. But the public domain must, in reality, be much more than this. The public’s domain is extensive, perhaps unimaginably large. It includes the host of unknowables that exist in the minds of creators, secret, unfixed or partially articulated. It consists of discussion, ideas, debate, and most activity outside the market. It includes the vast majority of works over which creators choose not to enforce their legal rights. The fixed term of patent and copyright, and the continued requirement for use in trademark suggest that an IP right is a privilege that must be asserted and that cannot be taken for granted. It occupies a discrete space for a distinct purpose carved out of a broad undefined space of intellectual activity. Ultimately the better name for the public domain is something more like ‘society’ or ‘culture’ or, even, ‘life’ rather than a notion embodied in a claim to a finite domain.

Dirk Bouts, The Fall of the Damneds (1470)     Perhaps, a better metaphor for intellectual property’s public domain is the concept of heaven (or hell, if you’re an IP lawyer). It requires a belief that IP rights are born, exist and when they die, their core moves on to a better place. Like heaven, IP rights are based on a faith: that otherwise non-excludable goods can in fact be exclusive if we all act as though they are. IP lawyers fight to ensure works don’t ‘fall’ into the public domain, be it through over-broad patent claims, substantial copying or trade-mark dilution. But, once the IP departs its legal shell it is admitted to the public domain; while the place may get a bit crowded, all are accounted for.

    That this public domain is as illusory as IP sky rights seems clear. But I would argue that the idea of the public domain itself is pernicious and harmful; its existence and the knowability of its contents validates the precursor claim to right. The end of IP term becomes a death; the immense breadth of the public domain becomes clouded by counting its resurrected souls. Further, this individualistic bean-counting masks the fuzzy, hybrid and interstitial nature of cultural and technological creation potentially impoverishing our conception of ‘life’.

    Lawyers have been creating legal documents called public domain dedications which allow Culture rights holders to give their works to the public domain. This effort has two main goals: to expand the public domain with more certainty and to create a culture of public domain dedication. But do we really need a licence to do that? Society has functioned for centuries on the notion that most disclosed ideas are free to use so long as you recognize a creator where appropriate, don’t profit in ways that mean she can’t and avoid mishandling the work. Intellectual works live in the public domain. While watching IP rights we drove into the free culture cul-de-sac. Populating the public domain is as harmful as limiting intellectual works through rights; it prioritizes rights over uses, inverting the presumption that all things are free until proven otherwise, forgetting that IP rests on the grant of rights in a shared delusion.
Tina Piper

Your comments / Vos commentaires (2)

    It takes different forms in the times of the internet, yet it is hardly new that a creator is torn between wishing her creations to be as widely available as possible (and thus benefit as many people as possible), and keeping some minimal control over their reuse and alteration (the motive for “creative commons licenses”).

    Martin Luther produced a translation of the Bible into popular German, with the aim of freeing the text of the holy book and its interpretation into a public domain of the common folk, beyond the gate-keeping of the Church and the erudite classes. Yet Luther took care to accompany the text with his own “inspired” commentaries and, even more importantly for his target audience, the text was accompanied by illustrations to vividly convey his perspective.

    There was no enforceable mechanism of author’s copyright in place. As soon as they were on the market, Luther’s works were quickly reprinted by all sorts of print-shops, like those of any other popular or controversial author of the time. The imperatives of the market meant that some versions of the translation were quickly amended to harmonize with Catholic orthodoxy. The illustrations naturally also gained this adjustment.

    For example, chapter eleven of the Book of Revelations tells of two of God’s witnesses and of The Beast (1522 and 1527) “the beast that comes up out of the abyss, makes war with them, and overcomes them, and kills them”. The illustration of this, as first printed in 1522, drove home Luther’s point of view: the beast is wearing a three tiered tiara, which would have been immediately seen as the symbol (if not the trademark) of the papacy.

    And yet here is a sanitized version of the same illustration, from an adjusted “version” of Luther’s translation printed in 1527 in the Catholic state of Saxony.

Luther Rose    Luther’s reaction to the highjackings of “his” bible was to storm against them in print, but also to deploy a “trademark” of his own, the now famous “Luther” rose. This symbol was to be included as an authenticating mark in authorized printings of Luther’s works. The rose was rarely forged, although only moral constraints bound printers to respect it. And it did not hinder the flood of unauthorized reprintings, nor apparently their popularity among buyers.

Blake Methven    
Corde á linge    L’optique qui voit dans la protection la norme et dans le domaine public l’exception va peut-être d’elle-même, une fois que nous nous voyons simplement comme des consommateurs passifs de la culture. Le domaine public serait en quelque sorte un dépotoir de matières usées (et laissées pour compte).

    La vocation de la protection des droits d’auteurs est d’inciter la création d’œuvres d’expression originale. Ces créations cueillent leurs ingrédients dans le domaine public.  Donc un renouveau continuel du domaine public, tant par l’expiration des droits d’auteur que par les apports libres des créateurs, est un élément essentiel du marché en vertu duquel la société accorde ces droits.

    Une fois que nous nous verrons comme co-créateurs de notre culture, nous verrons du même coup la nécessité de garder un sain équilibre entre le trésor commun du domaine public et la protection temporaire et motivée du droit d’auteur.

Pierre Bouchard