Enriching Discourse on Public Domains

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Citation: Pamela Samuelson (2006) Enriching Discourse on Public Domains. Duke Law Journal (RSS)



Download: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1280&context=dlj

Tagged: public domain (RSS)


Summary:

Author identifies 13 definitions of "public domain" found in law review articles:

  1. Information Artifacts Wholly Free from Intellectual Property Rights
  2. IP-Free Information Resources (eg laws of nature)
  3. The Constitutionally Protected Public Domain (eg facts, "limited time" of restriction)
  4. Privatizable Information Resources (eg "business methods", through new law)
  5. Broadly Usable Information Resources (eg due to exceptions, implicit license via availability)
  6. Contractually Constructed Information Commons (eg via public licenses)
  7. Status Conferring a Presumptive Right of Creative Appropriation (and call for codifying exceptions)
  8. A Cultural Landscape (and call for codifying exceptions)
  9. A Communicative Sphere (focus on requirement for social/democratic deliberation)
  10. Publication of Governmental Information (especially previously/otherwise secret information)
  11. A Domain of Publicly Accessible Information
  12. The Unpublished Public Domain (not IP-restricted, but unavailable)
  13. The Romantic (or Imperialist) Public Domain (as a threat to control of works and knowledge associated with traditional cultures)

James Boyle's Second Enclosure recognized 1, 2, 5, and 6.

Different definitions emerged due to fear of enclosure of different resources, and due to different conceptual groundings.

There is substantial overlap among the 13 posited definitions, grouped into 3 overlapping clusters:

  • legal status
  • freedom to use
  • accessibility

Benefits of accepting multiple definitions:

  • avoid disputes about "the" correct or one true definition
  • broadened awareness of public domains and public domain values
  • facilitation of context-sensitive discussion
  • enable nuanced answers to questions about various public domains (eg shrinking or not?)
  • possibility of gaining insight into public domain values through consideration of different public domains (deemed most important by author)

The main cost of accepting multiple definitions is possible confusion concerning what a communicator means by "public domain".

Theoretical and practical relevance:

Lecture by author covering similar ground https://www.youtube.com/watch?v=Pzi_9rE6O7c