More or Better? Shaping the Public Domain

The Public Domain of Information, 59-86 (P. Bernt Hugenholtz & Lucie Guibault, eds., Kluwer Law International, 2005)

35 Pages Posted: 18 Mar 2005 Last revised: 3 Feb 2023

See all articles by Michael Birnhack

Michael Birnhack

Tel Aviv University - Buchmann Faculty of Law


One of the most interesting concepts that emerged from the battle over the continuous expansion of copyright law in the last decade is that of the public domain. After the public domain was identified, many authors struggled to define it, map it, locate its constitutional sources and explain its crucial role in copyright law. This important work poses a viable alternative to the pro-property or commodification of information alternative. The public domain project reminds us that at least under an instrumentalist view of copyright law, the public domain is not merely - or rather should not be - an unintended byproduct, or graveyard of copyrighted works, but rather a playground for speech-experiments. Copyright is one of the main tools aimed to create the public domain. This domain is a commons, owned by all and none, a resource which we can use without asking permission. It has a crucial role in personal self-development, learning, experiencing, imagining, speaking with others, creating new works for the benefit of ourselves and wider circles, starting from the immediate interlocutor and up to the entire community. The public domain is the means and the end to promote the progress of science. It is where knowledge is created and where it lies, awaiting new interpretations, new applications and new meanings.

Once we accept that the public domain is not only a negative, we need to figure out how we would like it to be constructed. In this article I would like to add my contribution to the construction of the public domain. In performing this task, we need not ignore the elaborate political thought about freedom of speech. The public domain and free speech are two sides of the same coin. Both notions aim at constructing a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle. In this sense, both are derivatives of a political notion, which is a particular conception of democracy. Accordingly, it is useful to learn from the lessons of the free speech-copyright conflict in our task of constructing the public domain, within copyright law.

What kind of public domain are we interested in? I apply the notions of quality and quantity. These are fuzzy terms. At best, we would like to have a combination of both: we would like to construct a public domain that has more information and more speech of better quality. The article explores how these fuzzy terms interact with various theoretical justifications of both free speech jurisprudence, and then with various theories of copyright law, and concludes with tying all the ends together - examining how we can better construct the public domain.

Keywords: public domain, copyright law, free speech

Suggested Citation

Birnhack, Michael D., More or Better? Shaping the Public Domain. The Public Domain of Information, 59-86 (P. Bernt Hugenholtz & Lucie Guibault, eds., Kluwer Law International, 2005), Available at SSRN:

Michael D. Birnhack (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
+972-3-640-6623 (Phone)

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