The Public Domain

[2019] IPQ 1

32 Pages Posted: 24 Jun 2019

See all articles by Ilanah Simon Fhima

Ilanah Simon Fhima

Institute of Brand and Innovation Law, Unversity College London

Date Written: June 18, 2019

Abstract

This article explores whether it is possible to identify and delineate the public domain in intellectual property law.

The article begins with a review of existing IP scholarship on the public domain. Identifying that the prevailing model of the public domain relies upon analogies to the commons, it questions how well a model based upon medieval real property holdings might be expected to capture the nuances of intangible property in the internet age. Additionally, academic focus is predominantly directed on copyright law at the expense of other fields of intellectual endeavour and adopts a US-centric viewpoint, which may not reflective of the different settlement reached in the EU-influenced UK. The article then explores whether an alternative rhetoric in ‘no property’ – tangible objects which cannot be propertised – or a potential analogy with public rights of access to land might provide more suitable alternatives.

Ultimately, the article concludes that it is impossible to draw a complete map of the public domain in terms of what should not be propertised. Instead, it advocates for a positive conception of the public domain, based on individual uses that should always remain free, and the general public interests underlying those uses. This more flexible approach allows the law to evolve in response to specific changes in technology and social conditions, while at the same time maintaining a focus on core non-negotiable freedoms. It also consider whether the same methodology can be applied to tangible property.

Keywords: intellectual property, trade mark, patent, copyright, property, no property, public domain

JEL Classification: K11, K39

Suggested Citation

Simon, Ilanah, The Public Domain (June 18, 2019). [2019] IPQ 1 . Available at SSRN: https://ssrn.com/abstract=3406136

Ilanah Simon (Contact Author)

Institute of Brand and Innovation Law, Unversity College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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