Locating the Public Domain

Locating the Public Domain

Sheldon Inkol is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.

According to Julie E. Cohen, the public domain is nowhere. And all around us at the same time.

In her article “Copyright, Commodification, and Culture: Locating the Public Domain” (in Guibault, L. & Hugenholtz, P.B., eds. The Future of the Public Domain: Identifying the Commons in Information Law (Netherlands: Kluwer Law International, 2006) 121), Cohen examines various models used to define the cultural public domain, starting with the public lands model.

Before being associated with copyright, the public domain was a term used in 19th Century U.S. public land law. It was not uncommon for the courts to turn to property law for guidance in shaping the law pertaining to intellectual property, and vice versa. The gradual privatization of government-held lands sparked an ongoing debate over whether maximizing revenue or putting land to productive use was more important.

According to this public lands model, the public domain is a geographically separate place, portions of which can be privatized. This dovetails well with the pro-commodificationist viewpoint, which holds that the public domain is a preserve for the old, the archetypal and the unproductive, and since commodification promotes greater public access to expressive works, it does not undermine the public domain. Pro-commodificationists see themselves as cultural stewards and believe that a cultural good should only “fall” (note the negative connotation) into the public domain when its productive life has ended.

Anti-commodificationists, however, are conservationists who see the expansion of copyright as an unprincipled land grab by powerful companies.

Cohen identifies four puzzles that illustrate how the two sides have very different ideas about what the public domain really is. This disconnect is apparent in the following questions posed by pro-commodificationists:

How can extending current copyright terms threaten what is already in the public domain?

Copyrighted works are not in the public domain, so how can exempted uses of them be?

How can new subject matter like computer program interfaces be in the public domain when it is a concrete expression of ideas only recently brought into being?

How can copy-protection remove a work from the public domain?

To answer these questions, Cohen abandons the public lands model. To her, the public domain is not a geographically separate place awaiting commodification, but a policy construct intended to foster the growth of artistic culture. Economic models may measure sales but they cannot measure the communication of ideas.

Cohen sees artistic culture as a relational network (people and culture create each other) and recognizes that a critical ingredient in its development is the practical and uncontrolled accessibility of any one element within the network to other elements. The public domain is the cultural landscape within which creative practice takes place.

Cohen’s cultural landscape model is persuasive but she pushes it further in anti-commodificationist directions by referring to historical and anthropological investigations of artistic communities which reveal that copying, reworking and derivation lie at the core of creative practice. In the visual arts, for example, the reworking of another artist’s material is accepted as part of an ongoing artistic dialogue. Cohen names highly regarded artists from a variety of disciplines who have borrowed from the work of others and made it their own, from Shakespeare to Warhol to Quentin Tarantino.

Cohen feels that the fear of being sued for copyright infringement stunts creativity. The greater the reach of copyright laws, the lesser the ability of the public domain to preserve public access to the raw materials of creative practice. “A set of legal rules that asks people to adopt a permissions-based approach to their own cultural environment is inhumane and nonsensical,” Cohen writes (at 159). Is this why so many people are willing to break copyright laws without a second thought? Because we feel entitled?

Cohen’s position poses questions that go unanswered. For example, Tarantino is commonly considered to be a filmmaker who cannibalizes pop culture to create his own unique works, but he has also been accused of plagiarizing the work of others and taking credit for their ideas. Where does one draw the line between drawing on the common and plagiarizing? How can the rights of artists to the fruits of their own labour be protected when anyone passing by is entitled to pluck some apples for their own pies?

It is undeniable that society needs to decide which legal definition of the cultural public domain will create the best conditions for creative practice. The public domain may be the domain of accessible knowledge, as Cohen states... but sometimes access has a price.