THEORIZING THE PUBLIC DOMAIN: COPYRIGHT AND THE DEVELOPMENT OF A CULTURAL COMMONS

• Published date: 11 June 2003
• Pages: 3-36
• DOI: https://doi.org/10.1016/S1059-4337(03)29001-3
• Date: 11 June 2003
• Author: Debora Halbert

THEORIZING THE PUBLIC DOMAIN:

COPYRIGHT AND THE DEVELOPMENT

OF A CULTURAL COMMONS

Debora Halbert

ABSTRACT

The expansion of copyright and the shrinking of the public domain did not

begin with the Internet, but the Internet has exacerbated the problem. The

threat posed by digital technology has led industries to obtain increasingly

absolute protection over their “property.” In this paper I will argue that

developing a vibrant public domain is essential for resistingthe overextension

of copyrights and patents. Developing the public domain as a counterpoint

to copyright and patent law is vital to an energized public sphere and by

extension a democratic system.

INTRODUCTION

The temptation to share is overwhelming (Zygmut Bauman, 1991, p. 245).

When Congress passed the Sonny Bono Copyright Term Extension Act (CTEA),

works that were about to become public domain materials had an additional twenty

years of copyright protection added to their lives (Sprigman, 2002). By extend-

ing copyright protection, the CTEA essentially stopped the flow of copyrighted

material into the public domain for the immediate future, a restriction many legal

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 29, 3–36

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ISSN: 1059-4337/PII: S1059433703290013 3

4 DEBORA HALBERT

scholars found troubling (Jazsi, 2002).1Continuing with the practice that began

when the United States became a part of the General Agreements on Tariffs and

Trade (GATT), the CTEA also pulled many foreign works that had entered the

public domain in the United States, but not in their country of origin, back under

the protection of copyright law in the United States (Gasaway, 2001, pp. 32–33;

Kennedy, 1996, pp. 545–547). While the entertainment industry generally, and

Walt Disney specifically, benefit from the new law, the losers are less well de-

fined. After all, people can still read books, use the Internet, and watch Mickey

Mouse; these works simply remain protected by copyright law for a longer period

of time.

One loser who depended upon the public domain was Eric Eldred. As an on-line

book publisher of works in the public domain, the CTEA made it impossible for

Eldred to publish new material. Works that had been ready to enter the public

domain were no longer available for publication and a valuable literary resource

remained out of public control. In response, Eldred sued, arguing that continued

Congressional expansion of copyright interfered with the constitutional mandate

that copyrighted works only be protected for a limited time (Lessig, 2002,

pp. 196–199).2

Regardless of the outcome of Eldred’s lawsuit, the controversysurrounding the

CTEA creates the opportunity to clarify the value of the public domain. While

the idea of the public domain remains obscure, Eldred’s suit has become a focal

point for those concerned with the trend towards expanded copyright power in

the United States and internationally. Many would arguethat the public domain is

crucial to the circulation of ideas, a concept closely tied to democratic theory and

theories of the public sphere. It can be argued that without a balance between the

ownership and exchange of ideas, we lose a vital public space from which new

innovation can emerge. Lawslike the CTEA shrink the scope of the public domain

and can ultimately reduce our ability to exchange ideas without government and

private constraint.

The expansion of copyright and the shrinking of the public domain did not begin

with the Internet, but the Internet has exacerbated the problem. The threat posed by

networked and digital technology has led industries to obtain increasingly absolute

protection over their “property” (Lessig, 2002, p. 202). As James Boyle (2001)

eloquently points out, we are witnessing a “second” enclosure movement. This

second enclosure uses the same justification as the first, the Lockean argument

that by enclosing a “wasteland” one can use the land more productively, thereby

increasing the benefit for all. By privatizing creative work, so the argument goes,

the creator will have an incentive to create additional goods that will ultimately

benefit society. Within the logic of enclosure, little thought is given to the idea of

a general public that transcends the interests of any given individual. As copyright

Theorizing the Public Domain 5

and patent law expand their protective wings, the obvious victim is the public

domain, and by extension the public more generally.

In part, the public suffers because the idea of the public domain is an indistinct

concept of little concern to most people. Illegal exchange is the norm, not simply

because the world is filled with pirates and thieves, but because most people have

only a vague idea of what copyright protects. As a result, it has been easy for

special interests to pass legislation that benefits copyright owners at the expense

of the general public (Litman, 2001). However,even if the general public does not

perceive an immediate threat from the extension of copyrightlaw, the expansion of

thesepropertyboundarieswillultimatelyaffectus all. The shift from understanding

people as political citizens to understanding them as “consumption units in a

corporate world” substantially harms our ability to envision a public (Elliott, 1995,

p. 260). As the enforcement of copyright law becomes prioritized and sharing

becomes illegal, the public will lose a freedom they may not even realize they

have.

It is increasingly clear that the public domain’s lack of a theoretical core and

a limited advocacy network allows it to be easily overridden by those who claim

private property is the best way to protect the public. The public domain has

always been assumed to exist beyond the borders of private property, but because

private property is the key unit of analysis, the public domain is easily ignored or

marginalized (Lange, 1981). In response to the overemphasis of private property

rights, legal scholars have argued that the public domain needs to be revitalized

conceptually (or vitalized) to balance property and access.3Thus, developing a

vibrant idea of the public domain is essential for balancing public with private

property interests in the information age. As Bollier (2002) suggests in his recent

book Silent Theft, we “must begin to develop a new language of the commons.

We must recover an ethos of the commonwealth in the face of a market ethic that

knows no bounds” (p. 6). A substantial intellectual effort to invest the idea of the

public domain with meaning began in the early 1980s (Boyle, 1997, 2001; Lange,

1981; Litman, 1990). However, it remains a “concept which is in many ways in

crisis” (Frow, 1996, p. 103).

In this paper I will argue that imagining a space called the public domain is an

essential part of the resistance to the overextension of both copyrights and patents.

Developing the public domain as a counterpoint to copyright and patent law is

vital to an energized public sphere and by extension a democratic system. Only a

vibrant public domain, with the associated commitment to a general public, can

withstand the overwhelmingly powerful pressure to privatize. How people define

the content of the public domain is less important than the fact that such a space

begins to exist in a meaningful way. Without creating a viable conceptual space

for the public domain, we will be hard pressed to protect it.