Enriching Discourse on Public Domains

Abstract

"Part I provides a synopsis of thirteen conceptions of the public domain found in the law-review literature, explaining each, generally by reviewing its explication by its principal proponent or discoverer. Part II organizes the thirteen definitions by recognizing that they cluster around three main foci: (1) the legal status of information resources; (2) freedoms to use information resources, even if protected by intellectual property (IP) rights; and (3) accessibility of information resources. Although it is common to think of information resources as either IP-protected or public domain, and as either publicly accessible or not, Part II shows that the public domain literature views these concepts not as binary opposites, but rather as points along a continuum. Part III discussed the advantages and disadvantages of recognizing multiple public domains and recommends appending adjectives to the term public domain to clarify discourse about which domain is intended. The constitutional public domain, for instance, is distinct from the privatizable (although not yet privatized) public domain. This Part offers reasons why some conceptions of public domains should be accepted whereas others, perhaps should not. The principal advantage of recognizing multiple public domains is that it illuminates a range of important social values served by these domains and a plethora of strategies for preserving them and the values they serve."