Re: public domain question

On Mon, Mar 27, 2000, Bernard Katz <bkatz[_at_]uoguelph.ca> wrote:
>
> On Sun, 26 Mar 2000, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> >
> > 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.
>
> I think setting out analogues between land use and ownership and
> copyright use and ownership is at the *least* highly problematic.
> It has been thoroughly aired on this list and I won't burder folks
> with any sort of replay! Once statutory copyright was introduced
> in the U.K. with the Act of Anne (1710?), analogues with land became
> imo, moot.

The word "domain" does seem to imply some sort of positive ownership similar to land property. We have seen here some who say this means that the "property" is "owned" by "everybody" -- or by "nobody." (Though nobody apparently has claimed that it is the government who owns the "public" property by default, though often that is the assumption in land property.)

There are many problematic aspects to these concepts.

One thought is that it's not really property, because it is not really ownable by anybody. So in that sense it is not really "public" because it is not "domain." As Mr Katz suggests, better dump the concept? If it has no meaning in the law, what is its utility? But if it is misleading, what concept might replace it?

I found the book "Slide Mountain" to be a useful work to try to help clarify the issues (besides being quite entertaining -- maybe because it's by a historian rather than a lawyer). Theodore Steinberg in this book produces and discusses a number of real paradoxes in land property law generated by the odd idea that people can really master nature and thereby "own" land ("real") "property". What happens when the river moves its course? -- read the book and try to decide for yourself. (ISBN 0-520-20709-2, U Cal Press, 1995 paperback)

Are there similar paradoxes in intellectual property law?

For example, does the federal government have a default responsibility to protect the public's vested future interest in works contracted to enter the public domain -- similar to the way the government has a responsibility to prevent the privatization of land under navigable waters? Would that mean that "public domain" is not a nullity but a useful abstract idea that helps to understand how to interpret cases, for example to figure out what the Framers were thinking of when they wrote the Constitution?

If a certain American Indian tribe "owned" some land before European settlement, by virtue of hunting on that territory, does that mean that the tribe also "owned" its religion and cultural artifacts (and consequently copyright to them) forever in the face of European appropriation?

What happens to copyright when the underlying work is destroyed? (News reports suggest that the most expensive painting ever sold at auction has been destroyed for estate tax purposes -- what happens now to the copyright? -- does it linger on in some ghostly state for some reason?) What is the value of the underlying work when the copyright is severed from it? (The Zapruder film, for example.) If land or a trademark can be abandoned if not enforced, why can't a copyright be abandoned under the law for similar social reasons and then enter into the "public domain" by default?

Perhaps a lawyer might respond to Steinberg by suggesting that land ownership concepts might be paradoxical and not always the best to try to get along in the real world, but that we have to build up this elaborate system of abstractions and analogies in order to make sense of the world and get along in it. It's a continual effort (and keeps lawyers well paid, too).

The concept of "public domain" seems to have some utility when we consider that some people want to preserve it and others deny that it could have any existence or meaning. There are different social implications: each party wishes to act differently, and adapt the law to suit each purpose. In that sense does it have meaning?

I don't think any of us wants to feel that our abstract system of law and its concepts is just a system of logical assertions that is in the end subject to Godel's paradoxes. I believe we want to argue from first principles that certain of the systems are "better" or more representative of the "truth" than others.

For those reasons I think we should not easily dismiss grappling with the concept of "public domain."

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf