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OF THE PATENT, TRADEMARK AND COPYRIGHT RESEARCH FOUNDATION

USA / INTELLECTUAL PROPERTY / PUBLIC DOMAIN

The Tragi-Comedy of the Public Domain in Intellectual Property Law

A Samuel Oddi

Hastings Communication & Entertainment Law Journal, Vol 25 No 1, Fall 2002

As a contribution to the wiser debate on the true nature of Intellectual Property, both in law and in pkilosophy, this article seeks to establish the rationale of the public domain. It is based on the general proposition that, "as the overall amount of protected and protectable subject-matter expands, duration of protection grows longer and overlap between types of protection increases, constituencies who rely on intellectual subject-matter as stimuli for the creative process grow concerned about incursions of the private domain into the public". The author defines the public domain, observing that there is little reference to the concept in the statute law and relatively little in the case law; at the same time, there has been a tendency in the statute law to increase terms of protection and thereby encroach on the public domain. In the author's view, the public domain serves primarily as a source of "sensory stimuli" and only secondarily as some sort of intellectual commons "where all may freely exploit its contents". In Part II of the article, the author examines the legal and philosophical justification for this thesis. He cites a number of cases, mainly on patent and copyright law: for example, the Court's view in Feist Publications and Rural Telephone Service Co that "the primary objective of copyright is not to reward the labours of authors but to promote the progress of science and the useful arts… to this end copyright assures authors the right to their original expression, but encourages others to build freely on the idea and information conveyed by the work". This statement implies a certain kind of cognitive process; and the author looks at the philosophical basis (beginning with Kant) for determining the nature of the process, making due allowance for the fact that individual perceptions may give rise to different kinds of stimulus. Part III of the article, following a style adopted by many writers (from Locke on) when tackling the basic nature of property, looks at the public/private domain dichotomy in the "state of nature"; while Part IV looks at the dichotomy within an intellectual property system, emphasizing the differences between weak and strong forms of public and private domains. Part V then applies the thesis to the various forms of intellectual property. The author makes an interesting point, among many others, in relation to copyright protection which, he says, offers strong protection without necessarily giving the public the stimulus value of the protected work: "the copyrighting of computer programs without the disclosure of original code is an egregious example". Part VI of the article relates to unprotectable subject-matter: laws of nature (pace Aquinas) are a case in point. As the Supreme Court said in the Charkrabarty case: "Einstein could not have patented his celebrated law that e = mc2, nor could Newton have patented the law of gravity". Natural phenomena and abstract ideas are likewise precluded. Yet, as the author points out, "the inroads of intellectual property protection on [freedom of speech under the First Amendment] have been a major concern of scholars". Part VII offers the author's conclusions: generally, his thesis leads to the proposition that the stimulus value of ideas and creations should be enhanced within the Intellectual Property system; and, specifically, that incentives for maintaining secrecy should be limited and that disincentives for the creative use of subject-matter should likewise be limited. In passing, the author favours the expansion of fair use provisions and refers to the possibility of employing "liability" rules rather than "property" rules; but he recognises the current dominance of property theory, whether qualified by "intellectual" or not. [20099]