culture. Therefore, the public domain must be free for all to use, and copyright expansionism is a welfare loss against which society at large must be guarded.
The modern discourse on the public domain owes much to the legal analysis of the governance of the commons, that is, natural resources used by many individuals in common. Commons and the public domain are in fact two different things: the public domain is free from property rights and control whilst a commons may be restrictive. However, this kind of control is different than under traditional property regimes because no permission or authorisation is required to enjoy the resource. These resources are protected by a liability rule rather than a property rule.[1] Free Software, Open Source Software and Creative Commons are examples of intellectual commons.[2]
Although the public domain and commons are diverse concepts, since the origin of the public domain discourse, the environmental metaphor has been largely used to refer to the cultural public domain.[3] Therefore, the traditional environmental conception of the commons was ported to the cultural domain and applied to intellectual property policy issues. Under this conceptual scheme, the individual, legal, and market-based control of the property regime is juxtaposed to the collective and informal controls of the well-run commons.[4] Environmental and intellectual property scholars started to look at knowledge as a commons—a shared resource, as defined by the Nobel laureate Elinor Ostrom.[5] The environmental metaphor has propelled what can be termed as cultural environmentalism.[6]
- ↑ See Lawrence Lessig, “The Architecture of Innovation”, Duke Law Journal, 51 (2002), 1783-1801 (p. 1788); but see James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain”, pp. 33, 69 n., 145.
- ↑ See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven: Yale University Press, 2006), pp. 63–68. Benkler describes free software as “the quintessential instance of commons-based peer production”.
- ↑ See Mark Rose, “Copyright and its Metaphors”, UCLA Law Review, 50 (2002), 1-15; William St Clair, “Metaphors of Intellectual Property”, in Privilege and Property: Essays on the History of Copyright, ed. by Ronan Deazley, Martin Kretschmer and Lionel Bently (Cambridge: Open Book Publishers, 2010), 369-95 (pp. 391–92).
- ↑ See James Boyle, “Foreword: The Opposite of Property?”, Law and Contemporary Problems, 66 (2003), 1-32 (p. 8).
- ↑ See Charlotte Hess and Elinor Ostrom, “Introduction: An Overview of the Knowledge Commons”, in Understanding Knowledge as a Commons: From Theory to Practice, ed. by Charlotte Hess and Elinor Ostrom (Cambridge, MA: MIT Press, 2007), pp. 3–26.
- ↑ See James Boyle, “Cultural Environmentalism and Beyond”, Law and Contemporary Problems, 70 (2007), 5-21; and James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, MA: Harvard University Press, 1996).
