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.
The framing papers for the conference [ http://james-boyle.com/papers.pdf ] 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 [ http://james-boyle.com/papers.pdf ] for the complete collection of papers from the conference
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...
(Full
Text)
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.
(Full
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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.
(Full
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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
(Full
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Negativland,
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.
(Full
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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.
(Full
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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.
(Full Text)
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.
(Full
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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.
(Full
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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.
(Full Text)
Carol M. Rose,
Romans, Roads, And Romantic Creators: Traditions of Public
Property in The Information Age
(Full
Text)
Copyright 2001