02 August 2014

Public domains and copyright incentives

'Creating Around Copyright' by Joseph Fishman in 128 Harvard Law Review (Forthcoming) argues -
It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction. Drawing from work in cognitive psychology, management studies, and art history, this Article argues that contemporary copyright discourse has overlooked constraint’s generative upside.
The Article unpacks the concept of constraint into seven characteristics: source, target, scope, clarity, timing, severity, and polarity. These characteristics function as levers that determine a given constraint’s generative potential. Variation in that potential provides an underappreciated theoretical justification for areas in which copyright law is restrictive, such as the exclusive derivative work right, as well as areas where it is permissive, such as the independent creation and fair use defenses. The Article reveals that the incentives versus access debate that has long dominated copyright theory has misunderstood the relationship between creativity and constraint. Information may want to be free, but creativity does not.
'Enriching Discourse on Public Domains' by Pamela Samuelson in (2006) 55 Duke Law Journal comments -
Is there one public domain, or are there many public domains? The scholarly literature predominantly assumes there is only one, for references abound to "the public domain" in the singular. Yet, even a cursory review of this literature reveals that scholars sometimes define this term differently. So if there is only one public domain, but many definitions, perhaps one objective of scholarly discourse about the public domain should be to seek consensus on the one "true" definition. Professor James Boyle has provocatively suggested that there are many public domains, and has urged scholars to develop a rich vocabulary for distinguishing among them.
This article considers benefits of accepting the existence of multiple public domains and ways in which discourse about public domains might be enriched thereby. Part II provides a synopsis of thirteen conceptions of the public domain found in the law review literature, explaining each, generally by reviewing the explication of it offered by its principal proponent or discoverer. Part III organizes the definitions by recognizing that they cluster around three main foci: the legal status of information resources, freedoms to use information resources, even if protected by IP rights, and accessibility of information resources. Part IV discusses advantages of recognizing multiple public domains, among which are that they illuminate important social values served by these domains and a plethora of strategies for preserving them and the values they serve. To avoid the risks of confusion, Part IV also proposes adjectives to help differentiate among public domain concepts.
The public domains discussed by Samuelson in her 70 page article are -
  • PD 1: Information Artifacts Wholly Free from Intellectual Property Rights
  • PD 2: IP-Free Information Resources
  • PD 3: The Constitutionally Protected Public Domain
  • PD 4: Privatizable Information Resources
  • PD 5: Broadly Usable Information Resources
  • PD 6: Contractually Constructed Information 
  • PD 7: A Status Conferring a Presumptive Right of Creative Appropriation
  • PD 8: A Cultural Landscape 
  • PD 9: A Communicative Sphere 
  • PD 10: Publication of Governmental Information
  • PD 11: A Domain of Publicly Accessible Information
  • PD 12: The Unpublished Public Domain
  • PD 13: The Romantic (or Imperialist) Public Domain