Academic journal article Law and Contemporary Problems

Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age

Academic journal article Law and Contemporary Problems

Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age

Article excerpt



In a recent publication, the historian Paul Greenough addresses what he describes as the "standard environmental narrative" ("SEN") about the relationships between people and the forest in southern Asia--a narrative that casts the local forest-dwellers of the past as something akin to keepers or caretakers of the forest. Greenough observes that when he encounters this generic and romantic "SEN," he always wants to know where the wild animals are. (1) Wildlife may seem thrilling and attractive to those who do not have to contend with it, but in the nineteenth century colonial Indian subcontinent, the animals of the forest were in constant battle with the villagers. The villagers thrived when the tigers and elephants were at bay, and they were horrified and demoralized when these creatures flourished, trampling crops and devouring the village women who carried firewood home from the woods. Indeed, when the wildlife gained sufficient ground, the villagers sometimes abandoned their homes, which were reclaimed by the trees and vines and their animal inhabitants. (2)

One might surmise that people who hold intellectual property rights have much the same attitude about the public domain that South Asian villagers once had about the jungle: Like the jungle and its beasts, the public domain threatens to overrun them at every turn. Try as they might to cultivate their little properties, their patents and copyrights expire, their secrets get found out, their trademarks come into general usage, and all these erstwhile possessions return to the wild of the public domain, where the savage creatures indiscriminately gobble up everything. Incidentally, people who have carved out niches in the public lands of the United States seem to have much the same attitude about the more tangible version of the public domain: They are always at risk of being gobbled up by its environmental laws, its threats of increased grazing fees, and its newly-declared National Monuments and Roadless Areas. (3)

Both in such tangible spaces and in the "spaces" of intellectual endeavor, it is intriguing that the raging wildness of the public domain has so many champions. Is this simply a matter of ignoring the cultivated spaces of the villagers and leaving them to their fate? Or is there something positive to be said for these wild spaces in their own right?

No doubt, one ground for a favorable view of the public domain in what I will call "Intellectual Space" is simply that the positive arguments for exclusive property rights are so much thinner here than they are in what I will call "Tangible Space." It is widely thought that, with respect to tangible matters, two forceful Utilitarian arguments support exclusive property. The first is that exclusive property fights prevent wasteful overuse of resources and stave off the much-discussed "Tragedy of the Commons" that often accompanies open access. (4) The second is that exclusive property encourages optimal investment in resource development, since the gains and losses from that investment come back to the owner. (5)

In Intellectual Space, the first of these familiar arguments falls away, since there is no physical resource to be ruined by overuse. Books, tapes, and words may be copied, inventions may be imitated, pictures may be reproduced--all without the slightest damage to the original. Hence the Utilitarian case for exclusive rights in Intellectual Space rests entirely on the second argument, that the grant of exclusive property encourages appropriate investment in creativity. To be sure, there are non-Utilitarian arguments for intellectual property rights too, particularly claims based on labor or personality, but these are shared to a large degree with property in tangible resources. The long and short of it, then, is that exclusive property rights come up long in Tangible Space but rather short in Intellectual Space. This means that although there is still a case for property in the intellectual realm, the commons or the public domain is relatively more thinkable. …

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