Enriching Discourse on Public Domains
Author(s): Pamela Samuelson
Abstract: Is there one public domain, or are there many public domains? The scholarly literature predominantly assumes there is only one, for references abound to “the public domain” in the singular. Yet, even a cursory review of this literature reveals that scholars sometimes define this term differently. So if there is only one public domain, but many definitions, perhaps one objective of scholarly discourse about the public domain should be to seek consensus on the one “true” definition. Professor James Boyle has provocatively suggested that there are many public domains, and has urged scholars to develop a rich vocabulary for distinguishing among them.
This article considers benefits of accepting the existence of multiple public domains and ways in which discourse about public domains might be enriched thereby. Part II provides a synopsis of thirteen conceptions of the public domain found in the law review literature, explaining each, generally by reviewing the explication of it offered by its principal proponent or discoverer. Part III organizes the definitions by recognizing that they cluster around three main foci: the legal status of information resources, freedoms to use information resources, even if protected by IP rights, and accessibility of information resources. Part IV discusses advantages of recognizing multiple public domains, among which are that they illuminate important social values served by these domains and a plethora of strategies for preserving them and the values they serve. To avoid the risks of confusion, Part IV also proposes adjectives to help differentiate among public domain concepts.
Keywords: public domain, intellectual property, commons, licenses