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Abstract:
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From p. 90-91:
"In this paper, I am going to leverage this point of the comparative advantage of publicness in Intellectual Space. To do so, I will turn to the other side, to Tangible Space, to ask whether there is a case to be made even here for the public domain. One would think that if the public domain is at all attractive in Tangible Space, where there is such a strong argument to the contrary based on the potential waste of resources, then the arguments for the public domain should be even more compelling in Intellectual Space, where the counter-arguments for exclusivity are cut in half.
"Ultimately, I will conclude that to some degree this surmise is true -- that the arguments for the public domain are more persuasive in Intellectual Space -- but the examination of 'publicness' in Tangible Space reveals a number of considerations and limitations, some of which carry over into Intellectual Space. I am going to work through those considerations by reflecting on a very old body of thought, namely the Roman law's categories of nonexclusive property. Anything that I say here should be taken, as the Romans said, cum grano salis, because I am at best a novice both in Roman law and in matters of intellectual property. All the same, I will suggest that the Roman law's reasons for the 'publicness' of some tangible property might carry some weight in the intellectual realm as well -- but so do some of the Roman law's limitations and qualifications on the 'publicness' of property."
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