Defending the Public Domain Thoughtfully

For as long as I’ve been a librarian and journalist I have promoted the benefits of the public domain — i.e., that portion of the world’s intellectual output that anyone can draw upon freely to develop new knowledge. In the public domain there are no patents or copyright symbols, just a common storehouse of knowledge (kind of like a library) that anyone can use.

Although patents and copyrights are necessary economic inducements to creators, their terms are often so onerous that other people cannot benefit from this work for decades. This is true even when the economic return from the original effort has long since been realized. The result is a patchwork of locked-away intellectual assets stored under one intellectual property regime or another, depriving others who could make fruitful use of this knowledge from ever doing so.

Maximizing the public domain minimizes this risk, which is why I have always promoted it.

I am still a supporter of the concept of the public domain. That said, a recent lecture by Professor Ruth Okediji convinced me that this issue is more complicated than I realized. Okediji, who is on the faculty of law at Minnesota and is soon to join Harvard Law, spoke at a recent conference at UC Davis. This conference focused on open scholarship in the global south.

Okediji contends that expanding the scope of the public domain, if done blindly and without respect for local context, cou.d end up harming many people. Although increasing the public domain putatively equal has benefit for everyone, in reality this may not be true.

One example that Professor Okediji mentioned is that of indigenous communities around the globe that have developed their own medicinals. If this knowledge is documented and made posted online for all to see, it is very likely that Western pharmaceutical companies will profit handsomely by it while the creators of that knowledge will see no economic benefit at all. While this would not be fully terrible — a useful product would be reaching new consumers, after all — this example does show that the political calculus surrounding the public domain is more nuanced than often depicted. One could even say that such appropriation without compensation (a variant of “taxation without representation”) is a new form of colonialism.

While Okediji’s insights were fresh and useful for me, others realized the ambiguity of the concept of the public domain long ago. Indeed, Anupam Chander and Madhavi Sunder’s 2004 paper “The Romance of the Public Domain” was the most cited paper at the conference.

Armed with this fuller appreciation of the complexities of the public domain, its defenders (such as myself) now have a decision to make. We should not retreat to a fully privatized notion of intellectual property, in which there is no common stock of knowledge and everything must be bought or licensed. This never made sense, and certainly does not in today’s web-connected world in which it is easier than ever to share budding knowledge in progress. But while we must defend the public domain, we should not do so in a tone-deaf manner that takes no account of history or of ongoing power differentials. We have time to build a thoughtful and inclusive case for openness and a maximal public domain. The internet isn’t going anywhere.