Author(s): Molly S. Van Houweling
Abstract: The public domain is to the world of innovation and creativity what the environment is to the physical world. Concern with the public’s ability to build upon a body of intellectual works that are freely available as raw material for new generations of creativity and innovation echoes environmentalists’ concern with the public’s ability to enjoy healthy air, water, and open spaces. Skepticism about expanding intellectual property rights that impoverish the public domain echoes environmentalists’ skepticism about strong tangible property rights that limit the public’s access to open spaces and threaten to derail regulation aimed at protecting natural resources.1 In the work that this symposium commemorates and builds upon, James Boyle recognized these parallels and [*pg 24] called for the emergence of “cultural environmentalism” — a politics of public domain protection analogous to the politics of environmental protection.2
Ten years later, advocates for the value of open access to cultural raw materials are borrowing not just the politics of the environmental movement, but also specific techniques that environmentalists have used to protect important natural resources. Ironically, in both the physical and cultural contexts, environmentalists are increasingly harnessing property rights — so often in apparent tension with environmental goals — to promote the public’s interest in protecting and providing access to important resources.3
One way this phenomenon has emerged in the physical world is in the form of non-possessory property interests called “conservation easements.”4 A landowner who sells or donates a conservation easement, typically to a government entity or a non-profit organization devoted to conservation, remains in possession of her land but is required, along with successive owners, [*pg 25] to use the land only in ways that are consistent with the terms of the easement.5 For example, a conservation easement might require that land be maintained as a wildlife habitat, or that it be open for outdoor recreation by the public, or that it be preserved as open space, free of buildings that might interfere with the public’s scenic enjoyment of an area. The goal is to promote specific conservation purposes6 by severing the right to possess land from the right to use it in ways that disserve those purposes.
In the cultural context, advocates for a rich and expanding public domain are increasingly deploying voluntary intellectual-property-based techniques to achieve their goals.7 Most notable to date have been the efforts of the Free Software Foundation (FSF) to promote the use of the GNU General Public License (GPL), a software license that allows free copying and adaptation of copyrighted computer software, but only on the condition that resulting copies and adaptations are licensed on the same generous terms and accompanied by their source code.8 Thousands of software programs, including the Linux operating system, are licensed under the GPL.9 Recently, the nonprofit Creative Commons has promoted similar licenses for other types of creative works — photos, film, music, et cetera.10
In essence, these licenses separate the right to copy and adapt copyrighted works from the right to exclude others from the benefits of further copying and adaptation — much as conservation easements separate the right to possess and enjoy land from the right to deny the public its potential conservation benefits. Although works covered by the GPL or Creative Commons licenses are not technically in the public domain (at least as narrowly defined to include only those works that are not subject to any intellectual-property-based [*pg 26] restrictions),11 they are available to the public for many uses that copyright law would otherwise forbid, just as works covered by conservation easements may be open to the public — or at least dedicated to purposes that ultimately benefit the public — in ways that private property typically is not.12
Conservation easements have been praised for “conform[ing] to the general American desire for non-compulsory, voluntary solutions to land use problems . . . .”13 Efforts to harness intellectual property rights to promote open access to creative and innovative works have similarly been lauded as “invigorating the public domain with a new dynamism stemming from private action.”14 But there have long been critics of conservation easements,15 and the recent property turn in cultural environmentalism has begun to encounter criticism of its own.16
Conservation easements typically violate several common-law rules governing the formation and enforceability of non-possessory interests in land. Although the common-law obstacles have been eliminated by state statutes authorizing conservation easements, some critics have challenged the wisdom of those statutory authorizations, arguing that the common-law rules served important purposes. Two justifications for the common-law rules are central to this discussion: first, ensuring notice to future landowners and affected third parties; and second, preserving the flexibility necessary to make wise resource-use decisions in the future. These justifications resonate, more generally, with a growing literature praising standardization and consolidation of property rights.17 Conservation easements — which complicate and fragment property [*pg 27] rights in land — are in tension with those ideals. Critics argue that the GPL and Creative Commons licenses are as well.18
This article considers these tools of cultural environmentalism in light of objections to conservation easements and more general concerns with complicated and fragmented property rights. It concludes that the cultural context does present problems analogous to those encountered by conservation easements, but that the problems stem in large part from the background law of copyright. The lessons gleaned from the conservation easement experience can usefully be applied to improve and shape the future development of the GPL and Creative Commons licenses. But they might also help to solve some of the problems caused by copyright law itself.
Keywords: innovation, intellectual property, public domain, enviroment, conservation easements