Academic journal article Harvard Law Review

Designing the Public Domain

Academic journal article Harvard Law Review

Designing the Public Domain

Article excerpt

Over the years, copyright and patent scholars have had an increasingly intense love affair with the public domain, (1) and for good reason--the public domain is said to be necessary for a "just and attractive" democratic culture, (2) for meaningful freedom of speech, (3) and for the economically efficient production of information. (4) Though each of these justifications counsels robust access to information, what kind of public domain we should have depends largely on why we want one in the first place. This Note argues that social science research on human motivation suggests that we make the public domain most efficient only by making it more liberal and more republican. In other words, the leading economic theory of the public domain, enriched by an understanding of pro-social motivation, is compatible with liberal and republican theories. This Note organizes research on pro-social motivation around the motivation--fostering effects of empowerment, community, and fairness. By incorporating these norms into the cultural architecture of the public domain, we can promote greater information production at less cost than by relying solely on the intellectual property system's traditional tools of exclusion.

After an introduction to core concepts, Part I presents the three standard arguments in favor of a robust public domain. Part II describes recent social science research on human motivation, explains how this research should shape an understanding of incentives in the public domain, and organizes the myriad available policy levers into three intrinsic motivation--fostering strategies that shape the analysis in Part III. Relying on two case studies--one concerning patent validity and the other copyright's fair use doctrine--that final Part argues that, given what we know about intrinsic motivation, the most efficient public domain is in many respects compatible with the most liberal or republican one.

I. DEFINING AND DEFENDING THE PUBLIC DOMAIN

A. What Is the Public Domain?

Definitions of the public domain are both contested (5) and bound up in normative commitments. (6) The recent trend, running from works by Professors Jessica Litman, Yochai Benkler, and James Boyle (7) through those by Professors Anupam Chander and Madhavi Sunder, (8) sees the public domain as "the range of uses of information that any person is privileged to make absent individualized facts that make a particular use by a particular person unprivileged." (9) If information is not protected by an exclusive right, or if a given use of otherwise protected information is privileged (through the fair use doctrine, for example (10)), then it is in the public domain. (11)

This abstract, "crumbs theory" definition (12) is supplemented with metaphor in practice to signal the normative relevance of the public domain. (13) Environmental or space-based metaphors, such as a "commons" in danger of "enclosure," (14) are most common, and they are complemented by Professor Lawrence Lessig's vision of "free culture." (15) Such metaphors and narratives make the problems of the public domain cognizable. (16) But if the public domain is nothing more than the holes in the intellectual property system, why reify it with theory and metaphor? (17) Boyle provides one answer: "language matters." (18) He argues that just as an atomistic approach to land use problems can isolate diffuse concerns but obscure the salience of "the environment," so too can a property-centered approach to information "make the public domain disappear" (19) from public consciousness. This is particularly so when "well-organized groups with stable, substantial and well-identified interests face off against diffuse groups with high information costs whose interests, while enormous in the aggregate, are individually small." (20) In the absence of a compelling core story of access to raw materials for information production, (21) well-organized interests like the pharmaceutical and recording industries could more easily speed the trend toward increased exclusion. …

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