Mapping the Digital Public Domain: Threats and Opportunities

Abstract

From Introduction:

"Whether the public domain is a virtual wasteland of undeserving detritus or the font of all new creation is the subject of some debate. Those who adhere to the former perspective do not worry about 'threats' to this domain any more than they would worry about scavengers who go to garbage dumps to look for abandoned property. Adherents of the latter view, interestingly enough, are not of one mind about 'threats' to this domain. Some believe that propertizing value residing in the public domain will produce more social benefit than letting content languish there, while others regard propertization itself as the main threat to the public domain.

"At the risk of seeming a contrarian, I concur with all three views: some of what is in the public domain is detritus; some of what is valuable in the public domain might be better utilized if propertized to some degree; other parts of the public domain need to remain open and unownable as sources for future creations. In the course of explaining why I embrace this seemingly contradictory perspective, I will offer a map of the public domain. This map is a useful prelude to a discussion of possible impacts of various legal and policy developments affecting the digital public domain. Some initiatives would have adverse effects on the digital public domain, while others may not. This article will identify a number of threats to the public domain that deserve attention. It will also celebrate contributions that digitalization and digital networks have made in extending the public domain and enabling projects to preserve the digital commons. In some respects, digital information and digital networks have made the public domain more vibrant and robust, and if various digital commons initiatives attain their goals, the public domain may flourish as never before."