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Abstract
After clarifying the notion and different areas of the (digital) ‘public domain’, the paper engages in discussing literature on its relevance for society, in general, and economic innovation, in particular. The effectiveness of the utilization of these abstract potentials, however, depends on the respective public domain regulation. In this context, the paper distinguishes different regulatory modes and arenas in both copyright and patent law, thereby focusing private regulatory initiatives, such as Creative Commons or Biological Open Source. In the last section, the paper presents open research questions and makes some preliminary suggestions for potential research strategies.
Acknowledgements
The author is indebted to Jeanette Hofmann and the Social Science Research Center Berlin for hosting me as visiting researcher to work on this paper. Many helpful comments were provided by Juan Carlos de Martin, Melanie Dulong de Rosnay, Niva Elkin-Koren, Christian Katzenbach, and the participants of the 1st Berlin Symposium on Internet and Society, 25–28 October 2011, Berlin.
Notes
1. The German counterpart to the public domain (‘Gemeinfreiheit’), for example, does neither exhibit the spatial metaphor in terms of wording nor has it the same legal meaning, which is partly due to the inclusion of moral rights in the European droit d'auteur copyright system.
2. See http://www.communia-project.eu/about (accessed 13 November 2011).
3. See http://www.publicdomainmanifesto.org (accessed 15 November 2011).
4. According to Horowitz (2009, p. 1491, with reference to Chander & Sunder, 2004), this metaphor ‘refers to the crumbs left over after the intellectual property system has claimed all of the proprietary uses of information goods’.
5. In Europe, collections of facts in form of computer database are protected by Directive No. 96/9/EC of 11 March 1996 on the legal protection of databases (see also Section 4). For a critical assessment of this directive in comparison to the legal situation in the US, see Boyle (2008).
6. Individual countries may, however, grant even longer protection terms, as has happened, for example, in the European Union with 70 years after the death of the author. Also for works of corporate ownership, these terms might differ. In the US, for example, the works of corporate ownership are protected for 120 years after creation or 95 years after publication, whichever endpoint is earlier.
7. The interpretation of these clauses is, however, contested as evidenced by the ‘Declaration of the Three-Step Test’ provided by the Max Planck Institute for Intellectual Property and Competition Law and signed by a significant number copyright scholars, cf. http://www.ip.mpg.de/ww/en/pub/news/declaration_on_the_three_step_/ declaration.cfm (accessed 8 August 2011).
8. In the case of YouTube, the embedding practice is legalized in its Terms of Service, which states that by uploading content ‘[y]ou grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service’ (see http://www.youtube.com/static?gl=americas&template=terms).
9. According to Rose (2003, p. 76), this is true even historically: ‘[c]opyright and the public domain were born together’.
10. See, for example, the ‘Declaration on a Balanced Interpretation of the “Three-Step Test” in Copyright Law’, proposed by Geiger, Griffiths, and Hilty (2008) and signed by several renowned copyright scholars in Europe.
11. Shifting baselines are described by Sáenz-Arroyo et al. (2005, p. 1957) as ‘inter-generational changes in perception of the state of the environment. As one generation replaces another, people's perceptions of what is natural change even to the extent that they no longer believe historical anecdotes of past abundance or size of species’. Ortmann (2010) argues that this concept can be applied to a wider range of social phenomena.
12. Haque (2008) lists this distinction, together with other limitations of intellectual property rights, as ‘monopoly-defeating mechanisms’.
13. In his paper, Benkler (1999) distinguishes between several generic actor types, ranging from information inventory owners (e.g. Disney and Time Warner) over sellers of information outputs (e.g. authors) to nonmarket actors (e.g. universities).
14. Actually, there is an ongoing debate to what extent such transformative usage practices are covered by copyright limitations, such as fair use (see Dobusch & Quack, 2012b; Yar, 2005).
15. This points to the fundamental limitations of narrow economic perspectives that take free markets simply as the given primer for any investigation, most prominently put forward by Oliver Williamson stating that ‘in the beginning there were markets’ (1975, p. 20). Leaving aside the question, whether this market primacy assumption is generally wrong (see Polanyi, 1944/2001), the extant literature is unanimous in acknowledging the socially constructed nature of any market for immaterial goods.
16. In the German original, the respective passage reads as follows: ‘Aber er [der Unternehmer, Anm. L.D.] hat auch für andre gesiegt, für andre die Bahn gebrochen und eine Vorlage geschaffen, die sie kopieren können. Sie können und werden ihm folgen, zunächst einzelne, dann ganze Haufen. Wieder tritt jener Reorganisationsprozeß ein, dessen Resultat die Vernichtung des Kostenüberschusses sein muß, wenn die neue Betriebsform dem statischen Kreislauf eingegliedert ist. Aber vorher wurden eben Gewinne gemacht.’ (Schumpeter, 1912/2006, p. 285)
17. According to Boldrin and Levine (2008, p. 6), abolishing copyright and patent law is possible since ‘there are many other ways in which innovators are rewarded, even substantially, and most of them are better for society than the monopoly power that patents and copyright currently bestow’.
18. Hayden (2010, p. 87), however, generally rebuts the claim that the public domain is important for innovative processes but rather worries about potentially adverse effects from ‘making the idea of improvement – innovation, creativity – the price of admission not just to intellectual property claims, but to participation in newly “democratic” public and common spaces of knowledge production’.
19. Yu, however, does not consider these policy spaces to be part of the public domain but rather considers them to be orthogonal to it.
20. See, for example, http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_140836.11.08.pdf (accessed 15 November 2011).
21. Of course, there were and still are several private regulatory initiatives in line with this legal enclosure of the public domain – the most important being technological protection measures commonly referred to as Digital Rights Management. Since the focus of this paper is on the public domain – and not on its enclosure – I do not engage in detail with these initiatives (for more on this issue, see, for example, Bach, 2004; Bollier, 2004; Dobusch & Quack, 2012a; Ginsberg, 2007; Haque, 2008; Lessig, 2004).
22. While being compatible with – and partially even targeted at – the creation of markets for or around digital goods, important fields of application, such as Wikipedia effectively transcend market logics (see Benkler, 2006).
23. Elkin-Koren (2005, p. 390) goes even so far to state that this ‘communicates a strong proprietary message: authors should be free to govern their own works’.
24. For more on the issue of collecting societies and Creative Commons, see Dobusch (2010) and http://governancexborders.com/2010/06/27/declaring-war-on-free-culture-collecting-society-confronts-creative-commons/.