Designing the Public Domain

22 Pages Posted: 27 Feb 2009 Last revised: 31 May 2012

Date Written: February 27, 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.

Keywords: public domain, intrinsic motivation, copyright, intellectual property, motivation

Suggested Citation

Horowitz, Steven J., Designing the Public Domain (February 27, 2009). Harvard Law Review, Vol. 122, No. 5, p. 1489, 2009, Available at SSRN:

Steven J. Horowitz (Contact Author)

Sidley Austin LLP ( email )

One First National Plaza
Chicago, IL 60603
United States

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