beneficial effects on creative production from the existence and availability of freely usable public-domain works. By reducing the costs creators must pay to reuse others’ creations in their own, a rich commons pays public dividends in the form of greater production of expressive works.[1] As discussed below, however, changes to U.S. copyright law over the past three decades have tended to restrict the entry of new works into the public domain.[2] If a robust public domain fuels creativity, the strengthening of private property rights may have the opposite effect—they may increase authors’ costs and deter future creativity,[3] creating what Michael Heller calls “the tragedy of the anticommons.”[4] The parallel rise of the open-content movement, which leverages existing copyright and contract principles to create a new commons outside the public domain,[5] might be seen as a reaction to the excessive expansion of property rights into fields of intellectual and creative
- ↑ See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of “Rights Management,” 97 Mich. L. Rev. 462, 548 (1998) (“[S]ocial benefit accrues from the rights to access and use unprotected, public domain elements of existing works . . . . These rights and practices lead to the development of creative and scholarly talents and, ultimately, to the creation of new works . . . .”); Jessica Litman, The Public Domain, 39 Emory L.J. 965, 968 (1990) (“The public domain should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use.”).
- ↑ See infra Part III.A.1.
- ↑ As one judge famously put it:
Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.
White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc); see also Benkler, supra note 11, at 38 (“If we pass a law that regulates information production too strictly, allowing its beneficiaries to impose prices that are too high on today’s innovators, then we will have not only too little consumption of information today, but also too little production of new information for tomorrow.”); Landes & Posner, supra note 34, at 66–70.
- ↑ Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998); see also Michael Heller, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives 9–16 (2008) (offering illustrative examples from copyright); Eric von Hippel, Democratizing Innovation 112–15 (2005) (describing how strong intellectual property rights enable market incumbents to slow competitors’ innovation).
- ↑ See James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 Law & Contemp. Probs. 33, 62–66 (2003) (differentiating several features of contractually constructed information commons from the pure public domain); Lawrence Lessig, Re-Crafting a Public Domain, 18 Yale J.L. & Human. 56, 74 (2006) (distinguishing the free reuse of works under open content licenses from “the public domain”); Samuelson, supra note 35, at 799–802 (same).
Enriching Discourse on Public Domains, 55 Duke L.J. 783 (2006) (developing a valuable taxonomy of the many senses in which the term “public domain” is commonly used). This Article adheres to the conventional understanding of the term as signifying works that are not presently under copyright, irrespective of whether they may have been copyrighted at one time or whether they were ever eligible for copyright protection at all. As the discussion of the copyright abandonment doctrine below suggests, however, even this relatively settled usage may blur into uncertainty at the margins. See infra Part III.A.2.
