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Friday, October 13, 2006


Putting the “Commons” in House of Commons

In both a copyright and a creative content context, the term “commons” is most commonly used today in relation to Lawrence Lessig’s brainchild, the Creative Commons organisation. While it may seem very modern to use the term to refer to things other than common land, many do not realise that as early as 1954 the term was being used in relation to creative content. In “The Function of the Judge and Jury in the ‘Literary Property’ Lawsuit" (1954) 42 California Law Review 52, William B. Carman uses the term on several occasions. Carman describes ideas as being “things (that) are the universal heritage, the public commons, from which all may freely draw sustenance and which all may use as seems most satisfactory to them.” (p. 57, citations omitted). Further, Carman writes that a study of judge opinions in a number of literary property cases “leads one to the clear conclusion that in general the courts appreciate the vital importance of preventing this public commons from being fenced in by any private individuals.” (page 59, citation omitted) Ah, those were the good old days…

Carman also dedicates a footnote (p. 59, fn 33) to discussing the ‘public commons’, distinguishing the commons from the public domain. Carman states that he has used to the term “public commons to describe these elements which under no circumstances constitute private property.”(p. 59, fn 33). He purposely chose to avoid using the term ‘public domain’ because of the confusion that this term creates. Interestingly, it seems that the similarities and differences between the commons and public domain are still yet to be solved…and that will make an interesting post in the future! Returning to Carman, as far as I know, this is the earliest usage of the term ‘commons’ in relation to creative content – but if anyone can identify earlier use then let us know!

We want to make sure that the term the “commons” remains common for all to use and this usage is not dominated by any particular connotation, group or organisation. We hope that naming our blog “House of Commons” promotes the ‘commons’ and encourages widespread use of the term.

Although maybe no encouragement is needed: see the Academic Commons, the Digital Library of the Commons, the Environmental Commons, the Cricket Commons (admittedly, the last one isn’t a “commons” exactly but a set of luxury suites in Philadelphia, USA, but with cricket season underway in Australia I wanted to see if there was a ‘cricket commons’….)


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