Crystals in the Public Domain

Abstract

The law increasingly treats copyright as if it were any other form of property, and numerous writers decry this trend. In particular, scholars who express solicitude for the public domain fear that the propertization of copyright means an inevitable accretion of private rights in information at the expense of the public domain. This Article critiques this conventional view, arguing that the propertization of copyright has unappreciated advantages for users of public information goods. The conventional view relies on an overly narrow view of what propertization means. The treatment of copyright as a form of property generally entails not only reduction of entitlements to private ownership, but also the bounding of those entitlements with clearly demarcated, or crystalline, borders. Although many writers prefer muddy entitlements that create fluidity regarding the extent of the public domain, this Article argues instead that it is this very fluidity that is at fault for excessive accretion of private rights in information. Uncertainty about the extent of public entitlements in information allows well-capitalized private actors lay claim to resources whose public/private status is at all ambiguous, and then deter the public's claims through threats of litigation. By contrast, a public domain characterized by crystalline rule structures would benefit users, not only owners, by allowing them to better comprehend the extent of their entitlements and thus exploit common resources without fear of suit. By way of illustration, this Article provides three examples of how copyright law could be reformed to create user-friendly crystalline entitlement structures. It then concludes by situating the propertization of copyright law, and this critique of the dominant narrative about that trend, in the context of current debates in property law more generally.

Keywords: Intellectual property, property, copyright