Enriching Discourse on Public Domains

Abstract

Is there one public domain, or are there many public domains? The scholarly literature predominantly assumes there is only one, for references abound to “the public domain” in the singular. Yet, even a cursory review of this literature reveals that scholars sometimes define this term differently. So if there is only one public domain, but many definitions, perhaps one objective of scholarly discourse about the public domain should be to seek consensus on the one “true” definition.Professor James Boyle has provocatively suggested that there are many public domains, and has urged scholars to develop a rich vocabulary for distinguishing among them. He points out that the word “property” has multiple meanings, and discourse about property proceeds without confusion because legal professionals have learned to discern which meaning is intended from the textual context. Boyle urges intellectual property scholars to develop a similarly nuanced public domain vocabulary so that it will be possible to distinguish among its several meanings as well.This essay considers the potential benefits of accepting the existence of multiple public domains and ways in which discourse about public domains might be enriched thereby. Part II provides a synopsis of thirteen conceptions of the public domain found in the law review literature, explaining each, generally by reviewing the explication of it offered by its principal proponent or discoverer. Part III organizes the definitions by recognizing that they cluster around three main foci: 1) the legal status of information resources, 2) freedoms to use information resources, even if protected by IP rights, and 3) accessibility of information resources. Although it is common to think of information resources as either IP-protected or public domain, and as either publicly accessible or not, Part III shows that the public domain literature views these concepts not as binary opposites, but rather as points along a continuum. Part IV discusses the advantages and disadvantages of recognizing multiple public domains and recommends the use of adjectives to clarify discourse about the many public domains. The constitutional public domain, for instance, is distinct from the privatizable (although not yet, privatized) public domain. This Part differentiates among conceptions of public domains that should be accepted and those that perhaps should not. The principal advantage of recognizing multiple public domains is that it illuminates a range of important social values served by these domains and a plethora of strategies for preserving them and the values they serve.

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