Re: public domain question

On Sun, Mar 26, 2000, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
>
> On Fri, 24 Mar 2000, Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > I have a question about the public domain that I want to ask without
> > supplying the context for asking it (to be explained later):
> >
> > When you think of the Public Domain, do you think of a body of works
> > owned in common by everybody or do you think of a body of works owned
> > by nobody?
>
> Personally, I see the Public Domain as anything that is free of any
> ownership (do not confuse this with works that come with copyleft
> licenses - these copyleft works are not free, they are still
> owned by the authors and creators). I like the true meaning of
> communication. The root word of "communication" is "common" which
> means that anything that is communicated in any medium or any
> form becomes common to anyone who receives the communication.
> The root word "com" of "common" means "with", "together", and
> "in association with" and "mon" means serviceable and obliging.
> The "common" means that a thing that can be used by two or more
> people. This is what I would like the Public Domain to be.
>
> But, in the legal literature, the Public Domain means that the
> public owns the works.
>
> > Is there any body of law or any judicial decision that leads you to
> > choose one of the above?
>
> I did a light research several years ago on the definition of
> the Public Domain. Domain means land and public means all
> people in an area covered by a government at any level (such
> as city, town, county, state, federal). In the old days,
> when a land is a public domain, it means that whatever
> government that covers the land controls it. Because the
> government represents people in the area, the land belongs to
> all people, that is, public.
>
> Copyright (as well as patent) is built on the concept of
> property, that is, land. Like land, copyright comes with
> a set of rights. When a copyright owner loses copyright in
> a work/property, the ownership of the work/property reverts
> back to the public.
>
> Don't quote me -- this is not a scholarly research.
>
> > If you choose one or the other, what do you think are the implications
> > of your choice?
>
> We talked about whether a public domain work that is currently
> in the possession of a private citizen on his private property
> (such as a house) should be available to the public at all the
> times. The Public Domain needs to be treated differently
> in respect to tangible and intangible things.
>
>
> > If you choose neither, why?
>
> Do you have any other concepts that you want to tell us?

In the copyright context, I prefer to think of public domain as conceptually denoting that copyright "ownership" in a particular work of a particular form has been divested from somebody and is hence forth is owned by nobody.

I agree that it is proper to say that the public "owns" the work, but expressing the concept of public domain by reference to public ownership is confusing and, perhaps, imprecise.

This is particularly true in instances where we are dealing with what I call a proxy for the "public" such as a state university or some other such entity which (aside from the Federal government) may own a copyright interest in a work. (The issue gets even more complex with regard to patents, which not only may be owned by public units, but may be secretly "owned" by the public, if the Federal government so decides.) Under these proxy exceptions, it is clear that the works are not in the public domain, but some may view the public (or units of the public) as owning the intellectual property in the works, and I would agree. Let's reserve the ownership public domain works to no one.

Rod Dixon, J.D., LL.M.
http://www.cyberspaces.org/
rod[_at_]cyberspaces.org Received on Mon Mar 27 2000 - 18:55:09 GMT