Re: public domain question

On Fri, Mar 31, 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 03/23/2000, Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > 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?
>
> The majority of the responses to Robert's question stated that the
> public domain meant the absence of ownership. This is indeed the most
> intuitive view. But if one conceives of the public domain as the
> absence of ownership, then a work in the public domain can still be
> fenced up by controlling access and using contract.
>
> Suppose, for example, that during the lifetime of the copyright of
> a copyrighted musical work (a symphony, say), the publisher does not
> sell any reproductions of the score; it only rents them. [This is
> a common practice.] After the copyright expires, the publisher
> continues to rent the score; but only to people who are willing to
> sign an agreement that they will not reproduce it. If the violate
> the agreement, they are sued for breach of contract. If the public
> domain is merely the absence of copyright, it makes it easy for the
> publisher to argue that contract is simply a separate issue. But the
> fact that a work is in the public domain is meaningless unless I can
> copy it. This is why so many of us object to the enforcement of
> shrink-wrap licenses on facts and other public domain material.
>
> By conceiving the public domain as common ownership, instead of the
> absence of ownerhship, it makes it much clearer that what the publisher
> is doing is violating "my" ownership rights in the work, instead of
> merely taking advantage of the absence of ownership. That is one reason
> I prefer the common ownership analogy: everyone owns the work, instead
> of no one.

I am with you in spirit, but not in particular form. I think it is a stretch to say the publisher is "violating" a right of the public, if the "public" cannot assert that "right". "Ownership" denotes legal claim, title, or possession. In other words, the "owner" has some right against those who do not own. To speak of public common/ownership seems to drain any signifying meaning out of the term. Better to say, in my opinion, that the neither the publisher nor anyone else may assert an ownership interest in public domain works because no such interest exists. Still, we are stuck with the conundrum that you pose in your musical work example. Semantics will never counter-balance clever contracting, but I am not convinced your published has essentially defeated the sliipage of his/her work into the public domain, which I assume is your point. As for those who pick from the public domain and attempt to re-sell the work, buyer beware or consumer enjoy. (Of course, UCITA may be another issue entirely).

Rod Dixon, J.D., LL.M.
http://www.cyberspaces.org/
rod[_at_]cyberspaces.org Received on Sat Apr 01 2000 - 18:19:12 GMT