The Public Domain: IP, Culture, and Democracy

Jonathan MacKenzie is an LLM candidate at Osgoode Hall and is taking the Intellectual Property Theory course.

Since its first significant formal uses – in the 1896 decision of Singer v. June and the United States’ 1909 Copyright Act – the term “public domain” has become a key component of the North American IP legal regime. Over the last century, the “public domain” concept has both facilitated as well as circumscribed the incorporation of prior creative works into new artistic products. Today, the popularity of art forms that depend on reshaping previous works (such as the 2008 mash-up, “Elton’s Glasses”, which combines the musical compositions of Elton John and Phillip Glass, or the 2007 post-modern biopic, “I’m Not There”, which recreates shot-for-shot scenes from the 1967 documentary, “Don’t Look Back”) makes questions about the nature, content, and practical application of the public domain more relevant than ever.

With the preceding background in mind, Julie Cohen’s article, “Copyright, Commodification, and Culture: Locating the Public Domain”, offers a valuable contribution to IP law discourse by investigating the jurisprudential and theoretical treatment that the public domain has received in North America. The section of Cohen’s article that traces the development of case law and legislation pertaining to the public domain – particularly in the American legal system – leads to a two-part conclusion. First, Cohen observes that the modern notion of a “public domain” has been founded on the traditional “public lands” concept, derived from Western property law. Second, the author suggests that the association between these concepts has largely occurred as a result of the specific, unplanned, contingent unfolding of American legal history.

With regard to her consideration of the academic theory that surrounds IP protection and the public domain, Cohen’s analysis again contains two parts. First, she characterizes the leading theoretical perspectives on this issue as either being aligned with a cultural stewardship argument (encouraging the commodification of creative works) or a conservancy argument (opposing commodification). Authors who Cohen assigns to the former category generally include proponents of copyright expansion, such as William Landes and Richard Posner. Authors who she assigns to the latter category tend to favour public domain expansion, such as David Lange, Jessica Litman, and James Boyle. The second part of Cohen’s analysis is concerned with promoting a new figurative representation of the public domain – the cultural landscape model – as an alternative to the “public lands” metaphor she identifies as being a detrimental premise common to both cultural stewardship theory and conservancy theory.

As a whole, Julie Cohen’s article represents a worthwhile attempt to bring the theoretical structure of IP policy closer in line with the practical interests of different social actors who participate in the process of sharing creative works. As an exercise in further engaging the debate about how “public domain” concepts could be used to articulate an IP framework that was both economically and culturally viable, the following questions might be posed in relation to each of the historical and theoretical components of Cohen’s analysis:

A.  Regarding her historical critique, it is possible to ask whether United States’ adoption of the “public lands” model does, in fact, deserve to be minimized for having been a product of contingent legal history. To the contrary, an argument could be made that the survival of this model (in contrast to competing U.S. models, and in the European context) suggests that it possesses a unique conceptual soundness or integrity. Furthermore – given that both the cultural stewardship and conservancy theories discussed by Cohen fundamentally depend on the “public lands” metaphor – it is possible to ask whether this commonality actually underscores the usefulness of the metaphor itself, rather than being a basis on which to criticize each of the (otherwise) distinct theories.

B.  Addressing the alternative cultural landscape model that Cohen introduces in her article, a question arises as to whether one of her key policy recommendations (that creative works should be partially and differently protected) encourages the incorporation of undue complexity or subjectivity into the design of a “reformed” IP regime. If – according to Cohen – courts are rarely able to employ sophisticated, symbolic logic, but rather tend to follow a simpler process of reasoning (exemplified by their deduction of legal principles from preexisting metaphors), how can the judiciary be trusted to implement a more nuanced, mosaic, subjective IP regime of the kind that she, Boyle, and others have advocated?

Beyond exploring the above types of questions, which specifically emerge from the recent work of Julie Cohen, additional directions for conceptualizing a modern, effective “public domain” may also be identified in such forthcoming articles as “The Politics of Global Information Sharing: Whose Cultural Agendas are Being Advanced?” by Kathy Bowrey. Within the early 21st century context – when the dissemination of artistic works is subject to the aggressive and divergent influences of corporate demands for wider IP protection, on one hand, and technological and artistic incentives for sharing cultural products ever more freely, on the other hand – considering new ways in which the concept of the “public domain” might itself be reworked is a valuable area of study for anyone who is interested in how the exchange of creative ideas in society stands to benefit the individuals, organizations, and communities who participate in this process today, as well as those who will participate in the future.

One Comment
  1. Thanks for the post Jonathan. I have following observations/comments on the article.

    Cohen argues “clarification of commodification” asserts that the inevitable expansion of copyright threatens the continued feasibility of a strong public domain. Proponents of this expansion have their responses bifurcated as promoting greater public access to expressive works against the claimed nexus being a logical fallacy. Cohen’s paper calls for “a sociology of creative practice” and analyzes why the “public domain,” as traditionally understood in the law, fails to recognize the actual dynamics of creativity.

    The debate probes that the exact location of the dividing line between the proprietary and the public is a policy question. But according to Cohen, the four puzzles illustrate this gap in perception. They suggest that metaphorically-driven conceptions of what a ‘public domain’ is, and what it is not, play an important role in determining the answer.

    Cohen argues that the metaphor describes the public aspects of such culture shoddily. She explains that when considered in broader historical context, the term public domain has a specific set of denotative and connotative meanings. This idea grooves well with the current push toward commodification in copyright. The article tests this metaphorical construct of the public domain against descriptive and theoretical accounts of the ways that forms of artistic expression develop, and argues that the metaphor in fact describes the public aspects of artistic, intellectual, and informational culture poorly.

    Cohen offers a different organizing metaphor for the relationship between the public and the proprietary that matches the theory and practice of creativity more accurately. The common in culture is the cultural landscape within which creative practice takes place. This in turn suggests a need to reassess the doctrines that determine the scope of a copyright owner’s rights during the copyright term, particularly those that establish the right to control the preparation and exploitation of copies and derivative works. It concludes by asserting that the right approach to the relationship between the proprietary and the public in copyright law is to be derived by more careful attention to creativity as a social phenomenon manifested through creative practice.

    The criticism that the “public lands” model of the public domain may be popular for more significant reasons than mere historical contingency – 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. However, Cohen’s position poses questions that go unanswered. Where does one draw the line between depicting the commons and the counterfeits? It is unquestionable that society needs to decide which legal definition of the cultural public domain will provide more room for creative practice.

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