Challenges in Mapping the Public Domain
THE PUBLIC DOMAIN OF INFORMATION, P. Bernt Hugenholtz & Lucie Guibault, eds., Kluwer Law International, 2006
Posted: 19 Jul 2005
This essay considers positive, normative and political reasons for creating a map of the public domain and contiguous terrains. For far too many years, the public domain has either been invisible or been viewed in a negative way. By positively describing the contents of the public domain, it is possible to articulate normative reasons why the public domain is valuable to society. And by articulating the normative values of the public domain, it becomes possible to develop political strategies for protecting the public domain from undue incursions.
The essay also considers also several criticisms that might be levied at the author's first effort at public domain mapmaking, including its U.S.-centricity. It shows how US-centric terminology can be purged from the map so that the map can become useful in an emerging international conversation about the public domain. The essay discusses a second problem, namely, that the contents of the public domain vary from nation to nation. An accurate international meta-map of its contents may be difficult or impossible to design, and yet the essay suggests how the meta-map might be constructed. A third problem the essay considers is that there is no universally accepted definition of the term "public domain." There may, in fact, be many definitions of the public domain, not just one. The essay demonstrates several mappings to depict different definitions. Fourth, the boundaries of the public domain may shift over time, as laws and policies affecting its contours change. To be accurate, a map of the public domain will need to be redrawn every time a significant legal change occurs. Yet this is also true for maps generally, and is not an insurmountable obstacle. Fifth, there are numerous murky areas surrounding the public domain that a conscientious map-maker may find difficult to depict. The essay discusses the contents of these murky areas and why a public domain map ought to have a sector for murky areas. Sixth, the term "map" draws upon real property metaphors that are already too prevalent in intellectual property debates. If the goal is to enrich public policy debates about the public domain, perhaps reinforcing the "property" metaphor is unwise. Yet, the essay concludes that this objection does not outweigh benefits that may come from such a map. Seventh, the public domain map arguably distorts the size and centrality of the public domain and contiguous IPRs. And yet, maps, by their nature, distort the phenomena they depict in order to highlight aspects of the phenomena that might otherwise be obscured.
The essay explains why, notwithstanding these reservations, I persist in believing that mapping the public domain is a worthy endeavor and something akin to the maps of the public domain provided in the essay are useful policy tools. If one aspires to preserve the public domain through an international treaty, to take one example, one will need a rich conception of this domain, and a map may be a useful tool in developing consensus about protecting the public domain through a treaty. Maps are also useful in articulating various values that different parts of the public domain serve and why preserving the public domain is in the public interest.
Keywords: Intellectual property, public domain, fair use, copyright
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