Designing the Public Domain
Steven J. Horowitz
Sidley Austin LLP
February 27, 2009
Harvard Law Review, Vol. 122, No. 5, p. 1489, 2009
The public domain is said to be necessary for a "just and attractive" democratic culture, for meaningful freedom of speech, and for the economically efficient production of information. Though each of these justifications counsels robust access to information, what kind of public domain we should have depends largely on why we want one in the first place. This Note argues that social science research on human motivation suggests that we make the public domain most efficient only by making it more liberal and more republican. In other words, the leading economic theory of the public domain, enriched by an understanding of pro-social motivation, is compatible with liberal and republican theories. This Note organizes research on pro-social motivation around the motivation-fostering effects of empowerment, community, and fairness. By incorporating these norms into the cultural architecture of the public domain, we can promote greater information production at less cost than by relying solely on the intellectual property system's traditional tools of exclusion.
Number of Pages in PDF File: 22
Keywords: public domain, intrinsic motivation, copyright, intellectual property, motivationAccepted Paper Series
Date posted: February 27, 2009 ; Last revised: May 31, 2012
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