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Public Domain As Default Public Domain as Default Preliminary Draft – Please Do Not Cite or Quote Let the Public Speak: Public Domain As Default Miriam Bitton* Abstract The introduction of digital technologies has significantly challenged intellectual property law systems. One of the most troubling phenomena is the attack on the public domain (PD). The PD has been traditionally perceived as a major foundation for further creation and development and thus, as something that should be preserved and enlarged. Unfortunately, the introduction of information technologies changed this reality to such an extent that fewer works now become part of the PD. This article introduces a new approach for handling the problem of the PD, suggesting some innovative methods that would facilitate the effective dedication of materials to the PD as well as some alternative methods for enriching it. In particular, this Article will demonstrate the advantages of the suggested solutions by examining, inter alia, open access and creative commons licenses. This article argues that our default rules concerning copyright law should be changed in a way that corresponds to social norms, which are reflected in sharing, as well as resistance to copyright law as reflected in extensive infringement of copyrighted materials. I propose switching to a regime under which expressive materials are not protectable unless protection is affirmatively claimed.Additionally, I argue that a model of gradual dedication to the PD should be adopted to better reflect emerging social norms and practices. The default rule should be one under which the copyright laws will provide a menu of choices, which better reflect the tension between the public and copyright owners as well as their respective interests. Under this new “Gradual Dedication Model” (GDM) regime, creators of copyrightable works will be able to effectively dedicate works to the PD if they decide not to claim copyright protection. However, failure to either claim copyright protection or fully dedicate the work to the PD, will result in the work falling into the GDM default regime, under , which the work will be dedicated gradually. In Phase I of the GDM, the owner will dedicate the work to the public, who will jointly own the work, and these ownership rights will be subject to a duty to attribute the work to the author, allowing distribution of derivative works based upon it, for both commercial and non-commercial purposes, provided they are similarly dedicated under the GDM, and allowing copying, distribution, display and public performance of the work. After the set period of time, at GDM-Phase 2, the work will be dedicated to the PD with no strings attached, and will be free for use by all and subject to no use- restrictions. This model is promises to bringabout a new dynamism of sharing, and better reflects social norms and resistance to copyright law and essentially legitimizes them, 1 Public Domain as Default by creatinga simple and effective dedication mechanism. Furthermore, the model will avoid the complexities of licensing, create an identifiable PD that significantly reduces transactions costs, and encourage reliance on innovative business models, thus further enriching the public domain. I. Background ...........................................................................................................2 II. The Public Domain: Origins, Definition, and Its Ongoing Propertization .....5 III. The Public Domain: Proposals and Their Critiques .......................................14 1. Further Reliance on Property Regimes ............................................................14 2. Private Ordering...............................................................................................18 3. Institutional Solutions .......................................................................................33 4. Legislative Solutions .........................................................................................34 IV. The Public Domain: Towards a Social Norms-Based Solution.......................36 1. The New "Gradual Dedication" Model ............................................................46 2. GDM's Advantages ...........................................................................................51 V. Possible Challenges to the Model and Responses..............................................55 VI. Concluding Remarks...........................................................................................59 I. Background In November of 2001, the Center for the Public Domain at Duke University’s School of Law held a conference on the public domain. The public domain was defined as belonging to the "outside" of the intellectual property law system, and as consisting of the material that is free for all to use and to build upon. The conference touched upon the history and the theory of the public domain and proceeded through a "state of the public domain" report in three subject areas – the digital realm, culture, and science.1 In a way, the conference launched an ongoing discussion and debate regarding the public domain and how it should be preserved, guarded, and enriched. ©2010 Miriam Bitton, Associate Professor, Bar-Ilan University, Ramat-Gan, Israel. Visiting Assistant Professor, The Ohio State University Moritz College of Law. The author wishes to thank the following 2 Public Domain as Default Indeed, legal scholars and the courts have discussed the public domain extensively during this past decade. Some of the major concerns that have occupied legal scholars pertain to the over-propertization of information that is taking place, which has left very little material in the public domain. However, in sharp contrast, since the invention of the personal computer and Internet technologies (including sophisticated copying technologies), we have witnessed a significant growth in the piracy rates of copyrightable materials. Alongside this growth in piracy, a practice has started to emerge under which copying music, movies, software and other copyrightable works has become very common. In addition, during this past decade we have also witnessed the emergence of productive communities that have been extensively relying upon two important licenses: the GPL license for software, introduced by Stalman's Free Software Foundation; and the Creative Commons license for other creative works. In many ways, the emergence of such licenses represents people's desire to collaborate and share information for free. It also reflects a movement against the use of proprietary regimes, and demonstrates a real desire to create better access to information and knowledge. Thus, two disparate trends are taking place simultaneously. On the one hand, a process of growing propertization of the public domain is spreading. On the other hand, a process of taking proprietary materials is taking place in the form of extensive copyright infringement and the emergence of sharing norms with materials that could have been proprietary. individuals for very helpful comments: Joshua A. Brook, Rebecca S. Eisenberg, Michael Froomkin, Jeanne Frommer, Patrick Gudridge, Lital Helman, Scott Kieff, Roberta Kwall, Amy Cohen, Robert Hillman, Emily M. Morris, Gideon Parchomovsky, Guy Rub, Ted M. Sichelman, Brenda Simon, and Lior Zemer. The author also wishes to thank seminar participants at the DePaul College of Law Faculty Seminar, University of Miami School of Law Faculty seminar, the Ohio State University Moritz College of Law Faculty seminar, the Colubmus Intellectual Property Law Association March 2011 event, IP Theory Seminar at the Bar-Ilan University Faculty of Law, conference participants at the WIPIP Conference, 2011( Boston University), and conference participants at the IP Scholars Conference, 2010 (UC Berkeley). Last, but not least, many thanks are due to Reemon Silverman for excellent research assistance and very avid discussions. 1 James Boyle, The Public Domain: Forward: The Opposite of Property, 66 L. & Contemp. Prob. 1 (2003). See also James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 L. & Contemp. Prob. 33 (2003). 3 Public Domain as Default These trends and what can be done about them has been the subject of extensive discussion in the academy, U.S. Congress, and the courts. However, such discussions have not yet yielded any groundbreaking, satisfactory resolutions to the problems at hand. As a result, this Article offers a new perspective on the public domain problem, and offers a better legal framework for achieving openness while avoiding some, or many of the hurdles resulting from previous proposals. This Article builds upon the insights made in previously written literature and suggests that the rules concerning copyrightability should be crafted and designed on the basis of emerging practices and social norms. Based on such a principle, the default rules concerning creative works would be reversed so that such works will automatically fall into the public domain and will be open for use by all under a "Gradual Dedication" Model (GDM). Under the new model, creative works would be dedicated gradually so that at first (Phase 1) they would be owned by the public but at the same time would be subject to some use-restrictions (similar to an easement) for a set period of time. The use-restrictions will, in essence, reflect emerging social norms of sharing for free. The only restrictions imposed will be a duty to attribute the work and a duty to similarly dedicate any derivative works under the
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