Limiting Lessons from Property: Reimagining the Public Domain in the Image of the Public Trust Doctrine
22 Pages Posted: 22 Apr 2019 Last revised: 11 Aug 2019
Date Written: April 4, 2019
The talismanic nature of the term “property” creeps into intellectual property discourse in ways that often serve to enlarge the scope of IP rights. Much has been written about the propertization of intellectual property. This piece enters that conversation alongside pieces like "The Romance of the Public Domain" and "Cabining Intellectual Property Through a Property Paradigm" to suggest that the “property” label needn’t always amount to more rights. Rather, a deep engagement with the public trust doctrine suggests that “property” has long admitted to limits upon those rights. In this piece, I’ll attempt to engage in a substantive application of the public trust doctrine in the copyright space suggesting that such an application may have the potential to act as a significant check on intellectual property rights.
In a 2001 article Sharon Sandeen suggested that States ought to adopt statutes regarding management of their intellectual property. Sandeen analogizes to the public trust doctrine to argue “that free dissemination of state-owned intellectual property should be the rule and any restrictions on the public's use of such rights should be the exception.” In this piece I endeavor to consider a more robust application of the public trust doctrine to copyright cases by engaging the recent case, Code Revision Comm'n v. Public.Resource.Org, Inc., 244 F. Supp. 3d 1350 (N.D. Ga. 2017), 906 F.3d 1229 (11th Cir. 2018). I posit that importing the public trust doctrine into copyright has the potential to solve not only the problem epitomized in Code Revision Comm’n but a broader swath of copyright problems as well. Specifically, I assert that the public trust doctrine may offer a framework for considering allegations of infringement of protected works by use of works in the public domain. This consideration is especially timely in light of the fact that January 1, 2019 marked the first time in twenty years that a whole year’s worth of works entered the public domain.
Keywords: copyright, property, intellectual property, public domain
JEL Classification: K11
Suggested Citation: Suggested Citation