Conference on the Public Domain

Duke Law School • November 9—11, 2001
(With the support of the Center for the Public Domain)

About the conference

The last fifteen years has seen a rise in both the importance and the strength of intellectual property rights in the world economy; rights have expanded in areas ranging from the human genome to the Internet and have been strengthened with legally backed digital fences, lengthened copyright terms and increased penalties. Is this expansion of intellectual property necessary to respond to new copying technologies, and desirable because it will produce investment and innovation? Must we privatize the public domain to avoid a “tragedy of the commons,” or can the technologies of cheap copying and global networks actually make common pool management more efficient than legal monopolies? Questions such as these have thrown attention on the “other side” of intellectual property: the public domain. What does the public domain do? What is its importance, its history, its role in science, art, and in the building of the Internet? How is the public domain similar to and different from the idea of a commons? This conference, the first major meeting to focus squarely on the topic of the public domain, will try to answer some of these questions in areas ranging from the human genome to appropriationist art, from the production of scientific data to the architecture of our communications networks. For each panel, “focus papers” will be produced by authorities in the field and made available on the Internet before the event in order to generate discussion.

Framing Papers

The framing papers for the conference [ ] are intended to start the discussion before the conference even begins. At our request, the authors have made them available as discussion drafts, lacking the polish, the reservations, the citations, the second and third thoughts that more time would have provided. In return, we ask that you be charitable in noticing typos and slips of the pen, or brain. Thanks to all the contributors for producing such excellent papers on such short notice. They are arranged in sections corresponding to the organization of the conference:

Click here [ ] for the complete collection of papers from the conference

The History And Theory of The public domain

James Boyle,
The Second Enclosure Movement and the Construction of the Public Domain
We are in the middle of a second enclosure movement; it sounds grandiloquent to call it "the enclosure of the intangible commons of the mind" but in a very real sense, that is just what it is.... [This essay argues] that it is not enough merely to offer criticisms of the logic of enclosure. What's needed is deeper; a change in the way that these issues are understood, a change that transforms even our perceptions of self-interest, making possible coalitions where none existed before. In.. this essay, I try to develop the vocabulary and the analytic tools for such a change. I offer an historical sketch of various types of skepticism about intellectual property, from the anti-monopolist criticisms of the Framers of the American Constitution, through the emergence of affirmative arguments for the public domain, to the use of the language of the commons to defend the possibility of distributed methods of non-proprietary production. In many ways, it turns out, concepts of the public domain show the same variation in assumptions, the same analytic differences, as the concept of property itself. I conclude by arguing that, for a number of reasons, the appropriate model for the change in thinking that I am arguing for comes from the history of the environmental movement; the invention of "the environment" as a concept pulls together a string of otherwise disconnected issues, offers analytical insight into the blindnesses implicit in prior ways of thinking, causes perception of common interest where none was seen before. Like the environment, the public domain must be "invented" before it is saved. Like the environment, like "nature," the public domain turns out to be a concept that is considerably more slippery than many of us realize. And like the environment, it turns out to be useful, perhaps even necessary, nevertheless...
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Charlotte Hess and Elinor Ostrom
Artifacts, Facilities, and Content: Information as a Common-pool Resource
[C]ompetition for ownership of previously shared resources is not unique to the public domain of knowledge. . . . The goal of this paper is to summarize the lessons learned from a large body of international, interdisciplinary research on common-pool resources (CPRs) in the past 25 years and consider its usefulness in the analysis of the information as a resource. We will suggest ways in which the study of the governance and management of common-pool resources can be applied to the analysis of information and "the intellectual public domain." . . . As one of the framing papers for this conference, we will focus on the language, the methodology, and outcomes of research on common-pool resources in order to better understand how property regimes affect the provision, production, distribution, appropriation, and consumption of scholarly information. Our brief analysis will suggest that collective action and new institutional design play as large a part in the shaping of scholarly information as do legal restrictions and market forces.
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"State Of the Public Domain" Report: Digital Networks, Cultural Production and Basic Science

Pamela Samuelson,
Digital Information, Digital Networks, and the Public Domain
[S]ome of what is in the public domain is detritus; some of what is valuable in the public domain might be better utilized if propertized to some degree; other parts of the public domain need to remain open and unownable as sources for future creations. In the course of explaining why I embrace this seemingly contradictory perspective, I will offer a map of the public domain. This map is a useful prelude to a discussion of possible impacts of various legal and policy developments affecting the digital public domain. Some initiatives, I will argue, would have adverse effects on the digital public domain, while others may not. This paper will identify a number of threats to the public domain that deserve attention. It will also celebrate contributions that digitalization and digital networks have made in extending the public domain and enabling projects to preserve the digital commons.
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Jerome H. Reichman and Paul F. Uhlir,
Promoting Public Good Uses of Scientific Data: A Contractually Reconstructed Commons for Science and Innovation
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Two relationships to a cultural public domain
A question to consider is this: should those who might be borrowed from have an absolute right to prevent all such free reuses of their properties, even when the reuse is obviously part of a new and unique work? Do we want to actually put all forms of unauthorized reuse under the heading of "theft," implicating a socially valuable art form such as collage with criminal intent - a form which may be making controversial social or cultural points and cannot operate true to its vision when, regardless of whether or not it can afford the price of authorization, prior permission is required? We'd like to see copyright law acknowledge the logical and inalienable right of artists, not publishers or manufacturers, to determine what new art will consist of.
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Subject Area Study 1: Creativity, Appropriation, Culture and the Public Domain

David Lange and Jennifer Lange Anderson,
Copyright, Fair use and Transformative Critical Appropriation
In this essay we propose an extended interpretation of copyright's fair use doctrine. Building on expanded readings of earlier scholarly work and case law, we suggest that fair use must be understood to make deliberate room for transformative appropriation of copyrighted work whenever the appropriation and transformation are necessary steps toward the realization of significant social criticism. . . . Our proposal would substantially limit the present ability of a copyright proprietor to employ infringement theories so as to impede social commentary arising from transformative appropriations of copyrighted work. It would do so by recognizing an affirmative presumption of fair use in the settings we describe, in terms more readily accessible to the creators of appropriative social criticism than is now the case. We believe that these changes would represent a significant improvement in the fair use doctrine itself.
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Subject Area Study 2: Commodification of the Public Domain: The Challenge for Science & Innovation

Arti K. Rai and Rebecca S. Eisenberg,
The Public and The Private in Biopharmaceutical Research
[B]iomedical research comes from a . . . tradition of open science, in which longstanding norms call for providing free access to new knowledge in the public domain. This tradition has eroded considerably over the past quarter century as patent claims have reached further upstream from end products to cover fundamental discoveries that provide the knowledge base for future product development. . . . [A significant factor] promoting intellectual property claims in the early stages of biomedical research has been the explicit policy of the U.S. government to promote patenting of government-sponsored research results by universities, government agencies, and other recipients of federal research funds. . . . We believe that the time is ripe to alter the Bayh-Dole Act to give funding agencies more latitude in guiding patenting and licensing activities of their grantees. More generally, we would welcome recognition by Congress that patenting is not always or even usually the best way to maximize the social value of inventions and discoveries made with federal funds.
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Subject Area Study 3: From Anarchist Software to Peer2peer Culture: The Public Domain in Bandwidth, Software and Content

Lawrence Lessig,
The Architecture of Innovation
Our future is this: the free speech clause of the first amendment will be read to entitle those who own the wires to change the logical layer and make it owned as well. . . and the free culture that we have seen flourish in this commons built by the Internet will be captured and controlled again by those who control most of the content and by those who succeed in Congress in expanding their control from the imperfect to the perfect. The future of control will get built by an idea; the idea that property is good so more property is better. It will get sanctioned by a culture that has forgotten any distinction, and that is so blinded by what is has forgotten that it does not even notice when the most extraordinary innovation that our culture has seen since Thoreau was a name most Americans could spell is built. . . on an architecture that mixes freedom and control; that built property within a commons; that got its life from this mix of property and the commons.
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Yochai Benkler,
Coase's Penguin, or Linux and the Nature of the Firm
The emergence of GNU/Linux as a viable alternative to the Windows
operating system and of the Apache webserver software as the leading web server have focused wide attention on the phenomenon of free or open source software. Most of the attention to the economic aspects of the phenomenon has been focused on the question of incentives -- why, it is asked, would anyone invest effort in a productive enterprise in whose fruits they do not claim proprietary rights of exclusion -- and has been devoted to studying this phenomenon solely in the context of software development. In this paper I expand consideration of the policy implications of the apparent success of free software in two ways. First, I suggest that the phenomenon has broad implications throughout the information, knowledge, and culture economy, well beyond software development. Second, I suggest reasons to think that peer production may outperform market-based production in some
information production activities.
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The Constitutionalization of the Public Domain?

Yochai Benkler,
Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain
Exclusive private rights in information exist in tension with individual freedom to read and express oneself. This tension is mediated by constitutional constraints placed on Congress when it enacts such rights, constraints that in practice some lower courts have relaxed. The constraints are justified because exclusive private rights in information that are too strong entail substantial costs in terms of democracy and autonomy. . . . What is up for grabs in these debates is the way that information and culture is produced in the pervasively networked society. . . . The constitution cannot be silent or neutral in these questions. It places its thumb on the scales of freedom on the side of a robust democratic discourse, of diversity of antagonistic voices, and of individual expressive autonomy.
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New Papers Received from Participants:

Carol M. Rose,
Romans, Roads, And Romantic Creators: Traditions of Public Property in The Information Age
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Copyright 2001