Citations (1)



Access and the Public Domain

Randal C. Picker

University of Chicago - Law School

February 8, 2013

University of Chicago Institute for Law & Economics Olin Research Paper No. 631

One of the constitutive notions of intellectual property is the public domain. These are the ideas, notions and works that are usable by all where no person can invoke a right to block use by another.

I am interested in the mechanics of accessing the public domain and the consequences of the choices that we make about the operational effectiveness of various tools available for controlling access to the public domain. That matters both for the extent of access but also importantly for the scale and scope of competition in the provision of the public domain. This takes us to contract and terms of use; to the core of copyright in what it means to be original and also what it means to copy; to copyright’s periphery in the form of the deposit requirement; to the DMCA and its tools of distant control; and to the Computer Fraud and Abuse Act and its restrictions on accessing materials and objects under local control. With the emergence of major digital scanning projects for works in the public domain, we are at a point of possibly unparalleled practical access to the public domain. But the decisions we make about the tools just described will have a strong effect on the scope of the actual access to the public domain that emerges and in the extent of competition on the provision and use of the public domain.

We think of the public domain as open to all and in that sense owned by no one (or owned by all). But that ignores the question of how the public domain is actually accessed. We have many tools that control that access and in that sense, through those tools, we re-establish a shadow control regime for the public domain. And we are at the early stages of architecting competition in digital libraries and one piece of that process will be assessing the mechanisms for controlling access to the public domain.

Section I of the paper sketches out the emerging public domain. Section II considers three conceptual questions for structuring use of the public domain focusing on the extent to which the public domain should be viral; on whether we should insist that the public domain be accessed only through the original artifacts embodying it; and on whether private appropriability incentives for distribution of public domain scans match overall social interests. Section III turns to the tools for restricting use of the public domain, to copyright, contract, the DMCA and the CFAA. Each of these matters for access to the public domain and for competition over it. Section IV considers one narrow question regarding the relationship between copyright’s deposit requirement and a truly public public domain, while the last section briefly concludes the paper.

Number of Pages in PDF File: 28

Keywords: copyright, DMCA, Computer Fraud and Abuse Act, online public domain repositories, OPDR, digital libraries

Download This Paper

Date posted: February 10, 2013 ; Last revised: February 14, 2013

Suggested Citation

Picker, Randal C., Access and the Public Domain (February 8, 2013). University of Chicago Institute for Law & Economics Olin Research Paper No. 631. Available at SSRN: http://ssrn.com/abstract=2214176 or http://dx.doi.org/10.2139/ssrn.2214176

Contact Information

Randal C. Picker (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0864 (Phone)
HOME PAGE: http://www.law.uchicago.edu/Picker/
Feedback to SSRN

Paper statistics
Abstract Views: 1,814
Downloads: 162
Download Rank: 115,027
Citations:  1

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.266 seconds