The Public Domain: Enclosing the Commons of the Mind

As the owner of a Kindle, I decided to review a book in that format and purchased The Public Domain via amazon.com’s 3G Whispernet. I soon discovered that the author and publisher make the entire book available for download, at no charge, as a pdf file at www.thepublicdomain. org under a Creative Commons License. The same Web site contains a link to the Yale University Press which offers an html version that one can read online, again for no charge. So this review is not just of the content of the book but also of the several formats in which it may be accessed. The author, the William Neal Reynolds Professor of Law and cofounder of the Center for the Study of the Public Domain at Duke Law School, is widely published; his many works include a novel. His previous book on intellectual property, Shamans, Software and Spleens: Law and the Construction of the Information Society (1997) may be familiar to readers. This new book takes a somewhat different tack; the author sets three goals: (1) to introduce the reader to intellectual property and to explain why it is the legal form of the information age; (2) to persuade the reader that our intellectual property policy is going in the wrong direction; and (3) to explain the complex reality of ‘‘property’’ and show that the ‘‘public domain’’ is also property—and that, as owners, we all have a stake in retaining the public’s property rights in its domain. In other words, the book is a carefully constructed argument for a new direction in public policy with respect to intellectual property. The nature of Boyle’s argument is introduced in Chapter 2 through a letter Thomas Jefferson wrote to Isaac McPherson in 1813 in response to McPherson’s written inquiry about a certain patent that had been issued. Mr. Jefferson took the occasion to respond with a discourse on the nature of patent law and, by extension, to intellectual property law in general. Boyle summarizes Jefferson’s essentially utilitarian argument: ‘‘Jefferson . does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation’’ (p. 22, emphasis added). Like Jefferson (and as the author notes, like James Madison, Adam Smith, and Thomas Macauly), Boyle rejects the ‘‘natural rights’’ (droits d’auteur) argument, which can be crudely summarized as: ‘‘I thought this up, so it is mine. ’’ In its place he favors the utilitarian principle enshrined in Article 1, Section 8, Clause 8 of the United States Constitution and upheld by the courts: ‘‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. ’’ Boyle shows that, over the past decades, almost all of the ‘‘adjustments’’ made to patent and copyright law by both the Congress and the courts have implicitly bought into the natural rights position, many of them done in the name of preventing piracy. The middle chapters of the book discuss the gradual erosion of ‘‘fair use’’ and the negative consequences, the lack of positive consequences for creativity, and the failure to make any noticeable dent in piracy. In the last few chapters, Boyle turns to his main argument, which involves helping the reader to understand the nature of property. To do this he turns to the history of the enclosure of the common space in England, which took place ‘‘in fits and starts, from the fifteenth to the nineteenth centuries’’ (p. 43). Boyle shows that the common land was not unowned (if there is such a word) but was, in fact, owned by everyone. Enclosure did not take something that belonged to no one and convert it to private ownership; it took that which belonged to everyone and gave it to a few. And the results were a mixed blessing. This, he argues, is exactly what all the extensions of intellectual property ownership rights are doing today. Boyle’s argument is based on the presumption that all ‘‘original’’ ideas derive from an existing body of knowledge—the commons or public domain. This public domain is not just some place where old patents and copyrights go to die; it is our common storehouse of knowledge. By ignoring this fact we can only watch as the intellectual property owner ‘‘withdraws what already is known into the field of its monopoly and diminish the resources available to skillful men’’ (to use the stirring words of Justice Jackson in the majority opinion of A&P Tea Co. v. Supermarket Corp. 340 U. S. 147 (1950)). Early on Boyle concludes: