COMMUNIA FINAL REPORT | Public Domain as the Very Goal of Copyright

The return of the commons in the history of copyright law

As powerfully stated,  “a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all.”[343] Propertization and enclosure of the public domain should be opposed as contrary to the historical scope of copyright. The return of the commons, in fact, has a credible source in the history of copyright law.[344] Copyright law was born in Europe and elsewhere with broad civic purposes as well as strong anti-monopolistic sentiment.[345] Copyright was conceived as a limited monopoly to be granted to fulfill a higher end. The first copyright law, the Statue of Anne, embodied in the title its civic purpose by emphasizing the encouragement of learning.[346] 

The construction of literary property departed from the fundamental principles of traditional property rights. The rational for that departure, for the limited term of copyright and the consequent emergence of the public domain, has to be found in the emergence of the “public sphere.”[347] Jürgen Habermas identified this emergence in a social process giving birth to a new sense of civil society as a collectivity distinct from the family or the state.[348] The emergence of the “public sphere” and the Enlightenment commitment to the circulation of knowledge drafted the agenda of the protection of creative artifacts. Protection of private interests was viewed as a means, not as an end in the pristine copyright-public domain discourse.

This is unquestionable in the United States where the natural rights view has been rejected or dramatically limited by utilitarian legal theories.[349] The words of Thomas Jefferson sum up the utilitarian view:

[i]f nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.... He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.[350]

Jefferson concludes by saying that intellectual property rights might be necessary and “society may give an exclusive right to the profit arising from [inventions] as an encouragement to men to pursue ideas which may produce utility.”[351] 

Although natural rights theory dominated the European early copyright debate, European legal theorists drafted arguments against the idea of copyright as a traditional property as strong as the Jefferson’s utilitarian ones. The natural rights view was modified in Europe by the emergence of the discourse of the public domain propelled by a modern sense of civil collectivity and the Enlightenment idea of knowledge.

The British debate that followed the enactment of the Statute of Anne strongly argued in favor of the public value of cultural artifacts and against their propertization. In 1774, Lord Cadmen addressed the House of Lords by noting that “science and learning are in their nature publici juris, and they ought to be as free and general as air or water.”[352] Lord Cadmen speech won the day. The House of Lords rejected the claim for a perpetual common law right of literary property and the public domain was finally confirmed. Few years later, in 1841, Lord Thomas Babington Maculay revived the anti-monopoly tradition before the House of Commons. Arguing against a greatly extended copyright term, Maculay remarked:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. [ . . . ] It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.[353]

In France, at the time the concept of public domain is first mentioned in the French Decree of 1791, quite unexpectedly, the recognition and the enlargement of the public domain was as important as the protection of author’s works.[354] The abused selective quotations from Le Chapelier are misleading of what the early droit d’auteur debate was in France.[355] In fact, Le Chapelier warned us that “the most sacred, the most legitimate, the most indisputable, and […] the most personal of all properties [, . . .] the work which is the fruit of a writer’s thought” is “a property of a different kind from all the other properties.”[356] Le Chapelier continued by arguing that, once the work is disclosed to the public, “the writer has affiliated the public with his property, or rather has fully transmitted his property to the public.”[357] The author’s work is, therefore, public property, whose disposal is under the dominion of the author for the term established by law “because it is extremely just that men who cultivate the domain of ideas be able to draw some fruits of their labors,” Le Chapelier says.[358]

Moreover, it has been noted that much 19th century French copyright rhetoric anticipated modern cyber-libertarian arguments.[359] The Conseiller d’Etat Riché emphasized in 1866 that upon publication the work “is no longer the property of its producer” because “in the nature of things there is no literary property right in a work once it has been given over to the public.”[360] Joseph Prudhon noted that “[i]ntellectual property does not merely encroach on the public domain; it cheats the public of its share in the production of all ideas and all expressions.”[361] 

The modern public domain project takes over from where Kames, Jefferson, Le Chapelier, and Maculay have left it. Modern and old advocates of the public domain remind us that the rhetoric of property does not have it all. They remind us that the rhetoric of property has derailed the original civic and anti-monopolistic purpose of copyright law. Copyright law is meant to encourage learning, in the language of the Statute of Anne, and to promote progress, as the US Constitution formulation puts it.[362] Modern and old thinkers remind us that the public domain is not “an unintended by product, or ‘graveyard’ of copyrighted works but its very goal.”[363] 

A new politics of intellectual productions and creativity is sought that may re-define the hierarchy of priorities.  Any public policy of creativity should promote the idea that “information is not only or mainly a commodity; it is also a critically important resource and input to learning, culture , competition, innovation and democratic discourse.”[364] The agenda of the information society cannot be dictated by commercial interests above and beyond any of the fundamental values that shape our community. This approach would be a myopic understatement of the relevance of information in the information society. Therefore, “intellectual property must  find  a  home in a broader-based information policy, and be a servant, not a master, of the information society.”[365] If Europe is eager to take up a leading role in the digital environment as stated in the i2010 strategy and the Digital Agenda for Europe, it is time to depart from the idea that the only paradigm available is a politics of intellectual property. Instead, it is pivotal to develop a global strategy and a new politics of the public domain. Private incentive to creativity shall naturally follow like exceptions from the rule, to quote again the Public Domain Manifesto.

But there is more to it. We all are citizens of the public domain. As David Lange said, this citizenship is “arising from the exercise of creative imagination rather than as a concomitant of birth.”[366] The public domain is the only place where we truly belong. The public domain encompasses all we are and all the prospects for our future. There is no idea of original authorship, even the most powerful, that would help us to locate our individuality as the public domain does. In this regard, the words of one of the most relevant thinkers and authors in Western culture are an enlightening manifesto of how far human citizenship of the public domain goes:

[w]hat am I then? Everything that I have seen, heard, and observed I have collected and exploited. My works have been nourished by countless different individuals, by innocent and wise ones, people of intelligence and dunces. Childhood, maturity, and old age all have brought me their thoughts, their perspectives on life. I have often reaped what others have sowed. My work is the work of a collective being that bears the name of Goethe.[367]

The public domain is our country and our home. Enclosure and propertization of the public domain is the equivalent of depriving citizens of their country. It is the equivalent of locking people out of their home. Any policy oriented to the enhancement of creativity should be respectful of our citizenship of the public domain. Any such policy should nourish, protect, and promote the public domain. Any such policy should make, for every citizen, the public domain “a place like home, where, when you go there, they have to take you in and let you dance.”[368] 

[343] Litman, The Public Domain, supra note 81, at 977.

[344] See Karl-Nikolaus Peifer, The Return of the Commons – Copyright History as a Common Source, in Privilege and Property. Essays on the History of Copyright 348 (Ronan Deazley, Martin Kretschmer and Lionel Bently eds., Open Book Publishers 2010).

[345] See Rose, Nine-Tenths of the Law, supra note 69, at 78-80.

[346] See Statute of Anne, 1709, 8 Ann., c. 19 (Eng.) (“An act for the encouragement of learning, by vesting the copies of printed books in the authors or publishers of such copies, during the times therein mentioned.”)

[347] See Mark Rose, The Public Sphere and the Emergence of Copyright: Areopagitica, the Stationers' Company, and the Statute of Anne, 12 Tul. J. Tech. & Intell. Prop. 123 (2009); Rose, Nine-Tenths of the Law, supra note 69, at 76.

[349] See Boyle, The Public Domain, supra note 91, at  27;

[350] Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in The Writings of Thomas Jefferson (Albert Ellery Bergh ed., The Thomas Jefferson Memorial Association of the United States 1907).

[351] Id.

[352] Donaldson v. Beckett, 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 (1774) (Lord Cadmen)

[353] Thomas B. Macaulay, A Speech Delivered in the House of Commons (Feb. 5, 1841), in VIII The Life and Works of Lord Macaulay 201 (Longmans, Green, and Co. 1897)

[354] See Guibault, Wrapping Information in Contract, supra note 70, at 89.

[355] See Ginsburg, Une Chose Publique, supra note 67, at 653 (discussing, in general, the truncation of Le Chapelier’s quotations in property-enthusiasts’ literature); see also Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, in Of Authors and Origins: Essays on Copyright Law 131, 144 (Brad Sherman and Alain Strowel eds., Oxford 1994) (discussing the origins of the truncation).

[356] Archives parlementaires (Assemblée nationale), January 13, 1791, at 210 (report of Le Chapelier)

[357] Id. at 212-213.

[358] Id.

[359] See Ginsburg, Une Chose Publique, supra note 67, at 656, citing Laurent Pfister, La Propriété Littéraire est-elle une Propriété? Controverses sur la Nature du Droit D’auteur au XIXe Siècle, 205 RIDA 117, 117-19 (July 2005)

[360] Rapport fait au nom de la Commission rassemblée pour la rédaction d’un projet de loi sur la propriété d’arts, de sciences et des lettres, par le Comte de Ségur, Moniteur du 28 mars 1837, reprinted in Fernand Worms, 2 Etude sur la Propriété Littéraire 228, 244, 249 (Lemerre 1878)

[361] Joseph Prudhon, Les Majorats Littéraires : Examen d’un Projet de Loi Ayant pur but de Créer, au Profit des Auteurs, Inventeurs et Artistes, un Monopole Perpétuel (1862), in Le Combat du droit d’auteur 140, 152-53 (Jan Baetens ed., Les Impressions Nouvelles 2001)

[362] See Art. 1, Sec. 8, cl. 8, US Const.

[363] Birnhack, supra note 78, at 60.

[364] Samuelson, Mapping the digital public domain, supra note 63, at 171.

[365] Id., at 171-172.

[366] Lange, Reimagining the Public Domain, supra note 75, at 475.

[367] Johann Wolfgang von Goethe, cited in Martha Woodmansee and Peter Jaszi, The Law of Text: Copyright in the Academy, 57 College English 769, 769 (1995).

[368] Lange, Reimagining the Public Domain, supra note 75, at 470.