THE PUBLIC DOMAIN
“LAWYERS CALL THIS ‘COPYRIGHT RESTORATION’ BUT IT MIGHT BETTER BE CALLED ‘COPYRIGHT RENDITION’: CONGRESS HAS TAKEN WORK THAT ONCE LIVED FREELY AMONG US AND RETURNED IT TO FOREIGN MASTERS.”
Which brings me back to that 1948 movie. If you teach the Cold War and want to show Iron Curtain to your students, good luck. As one unintended consequence of copyright rendition, that fi lm has now disappeared from domestic distribution, Congress having managed to do what Stalin never could. T e limits the Founders built into copyright were meant not only to engender a public domain but, by the same token, to curb Congress’s power to do favours for its friends and to soſt en the fact that expressive monopolies are easily abused. “Limited monarch”, “limited times”, “limited powers”—by such phrases do we nominate the constraints that are the preconditions of liberty.
Such, in any event, was my argument in favour of the Golan plaintiff s last October. And although much of what I had to say is echoed in the dissent by Justice Stephen Breyer, in January the majority of the court took a diff erent view, concerning themselves more with harmonising international law than with the evils of monopoly privilege or the benefi ts of a clear and stable public domain.
T ere is much to say about the court’s decision, but I will here confi ne myself to a single observation. It has always been a bit of a mystery how we are to categorise the public domain. Is it something the public ‘owns’, and if so, in what sense? Or is it a kind of no-man’s land with free access but no governance? Is it a ‘commons’, managed and preserved by law and custom? Or is it an open pool resource with no constraints as to use and appropriation?
In the recent past there have been cases in which it appeared to be the last of these. T e 1998 US law that added 20 years to the term of copyright is a good example: it appropriated (retroactively
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as well as proactively) a large sector of the public domain simply by legislative fi at.
Many of us had presumed that such copyright term extension might be a unique case and that there remained constitutional constraints on other kinds of takings. We pinned our hopes not only on the First Amendment but also on the “limited times” phrasing of the Copyright Clause. Surely the word “limited” indicates that what lies on the far side of copyright is a commons, not a wilderness.
Apparently not. In the Golan ruling, the public domain turns out to be an area analogous to the oceans before there was a Law of the Sea, or to the atmosphere before there were laws governing pollution.
T e old categories into which Roman law sorted kinds of property may help us think through what that means. Res nullius was the name the Romans gave to things that can be exclusively owned, but are not yet because no one has taken them. Examples would be fi sh and game animals, or abandoned property. Res communes, on the other hand, referred to things whose size and range make them diffi cult to capture for private ownership. Examples would be the oceans or the atmosphere. In an article on these categories, Carol Rose once wrote that when it comes the “intellectual space”, one might say “that the function of intellectual property is to turn res communes, things by their nature incapable of ownership, into res nullius, things not yet owned but capable of appropriation”. Aſt er Golan, the public domain is “intellectual space” of exactly that order. It is an open pool resource, a territory that works may henceforth exit whenever someone fi gures out a way to get Congress to authorise their capture.
To close these refl ections on a more optimistic note, perhaps the larger lesson of the Golan case is that we need to think of protecting the cultural commons not by law but by norms and customs. To give one example of success in this line, the current ‘open access’ movement in institutions of higher learning shows great promise. Open access regimes work in consort with copyright law, but within that framework they are more rightly described as norms-based interventions. Where they succeed, they are slowly converting academic research into a rich common where, to echo Henry Fielding: “every Person who hath the smallest tenement in the Academy hath a free right to fatten his Muse”. ■
Lewis Hyde is a poet, essayist, translator and cultural critic. A MacArthur Fellow, Hyde is the Richard. L. T omas Professor of Creative Writing at Kenyon College and is a Faculty Associate at Harvard’s Berkman Centre for Internet and Society. Common As Air: Revolution, Art, and Ownership by Lewis Hyde is published by Union Books, £16.99
World Intellectual Property Review March/April 2012
27
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