Mapping the Digital Public Domain: Threats and Opportunities

INTRODUCTION Whether the public domain is a virtual wasteland of undeserving detritus or the font of all new creation is the subject of some debate. (1) Those who adhere to the former perspective do not worry about "threats" to this domain any more than they would worry about scavengers who go to garbage dumps to look for abandoned property. Adherents of the latter view, interestingly enough, are not of one mind about "threats" to this domain. Some believe that propertizing value residing in the public domain will produce more social benefit than letting content languish there, (2) while others regard propertization itself as the main threat to the public domain. (3) At the risk of seeming a contrarian, I concur with all three views: some of what is in the public domain is detritus; some of what is valuable in the public domain might be better utilized if propertized to some degree; other parts of the public domain need to remain open and unownable as sources for future creations. In the course of explaining why I embrace this seemingly contradictory perspective, I will offer a map of the public domain. (4) This map is a useful prelude to a discussion of possible impacts of various legal and policy developments affecting the digital public domain. Some initiatives would have adverse effects on the digital public domain, while others may not. This article will identify a number of threats to the public domain that deserve attention. It will also celebrate contributions that digitalization and digital networks have made in extending the public domain and enabling projects to preserve the digital commons. In some respects, digital information and digital networks have made the public domain more vibrant and robust, and if various digital commons initiatives attain their goals, the public domain may flourish as never before. II MAPPING THE PUBLIC DOMAIN AS AN AID TO UNDERSTANDING ITS PRESENT STATE IN THE DIGITAL ENVIRONMENT The public domain has been, for the most part, an uncharted terrain. Sometimes it seems an undifferentiated blob of unnamed size and dimensions. (5) More often, discourse about the public domain focuses on one, or a small number, of its component parts or traits. (6) As a number of scholars have recognized, the public domain consists, in fact, of a vast and diverse assortment of contents. (7) The public domain is, moreover, different sizes at different times and in different countries. (8) Sometimes the public domain grows, as when patents or copyrights expire, or as in the aftermath of decisions such as Feist Publications, Inc. v. Rural Telephone Service, which held that uncreative compilations of facts cannot be protected by U.S. copyright law. (9) Sometimes it shrinks, as when the European Union promulgated a directive requiring EU member states to protect the contents of databases (10) or when U.S. courts decided that business methods could be patented. (11) The public domain also has some murky areas. F or example, some intellectual creations are, in theory, in the public domain, but for all practical purposes, do not really reside there. (12) Although I define the public domain as a sphere in which contents are free from intellectual property rights, there is another murky terrain near the boundaries of the public domain consisting of some intellectual creations that courts have treated as in the public domain for some, but not all, purposes. (13) Across the border from the public domain are several categories of content that are so widely usable that, for practical purposes, they seem to be part of the public domain. (14) This includes, importantly, much content that is technically protected by copyright law but is widely available to the public, as when it is posted on publicly accessible web sites available to all comers without fee or apparent restrictions on use. Also outside the public domain in theory, but seemingly inside in effect, are such things as open source software; a penumbra of privileged uses under fair use, experimental use, and other copyright rules that permit unlicensed uses and sharing of information to take place; and standards that are licensed without payment of royalties. …