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Wednesday, October 10, 2007


The Many Non-American Faces of the Public Domain

Book Review: 'Intellectual Property: The Many Faces of the Public Domain'
Edited by Charlotte Waelde and Hector MacQueen
(2007, Edward Elgar, UK)

In the growing body of scholarship on the public domain in copyright law, it seems as though many articles contain the same footnote. It will be early on the article or chapter and will feature names that any public domain scholar, from any jurisdiction, will recognise as easily as they would the name ‘George W. Bush’. Those names will include (and, although I’m writing this off the top of my head, this is probably the exact order that these names would appear): David Lange, Jessica Litman, Edward Samuels, Keith Aoki, Yochai Benkler, Lawrence Lessig, James Boyle, Pamela Samuelson. Occasionally there will be some variation: an author will recognise an earlier work, or a work in the middle, and a few names afterwards. My own work usually features such a footnote, although my thesis explores the public domain musings of each of these scholars in greater detail.

The Waelde and MacQueen edited book, Intellectual Property: The Many Faces of Public Domain, does not feature any of these ‘usual suspects’. Instead, the authors of the many chapters in this book contribute to public domain literature with a number of new, non-United States perspectives that undoubtedly ‘enrich’ (to use a term of Pamela Samuelson’s) the growing body of scholarship on this concept. There is no great emphasis on the United States copyright clause or First Amendment here. That is not to underestimate the quality or impact of public domain scholarship on those American issues; in fact, in seeking to explore constitutional aspects of the Australian public domain this literature has been invaluable. However, as many public domain scholars have noted, there are numerous public domains and the various contributors in this edition each construct this concept in very different ways and contexts.

Indeed, the chapters provide numerous perspectives and views of the public domain, ranging from the historical or theoretical, to the much more practical. F. Willem Grosheide’s chapter “In Search of the Public Domain During the Prehistory of Copyright Law” provides an interesting historical introduction to the edition, while in “Copyright’s Public Domain” Ronan Deazley dives head first into the basics of constructing the public domain, and in the tradition of Pamela Samuelson, provides a number of useful illustrations (given the number of issues and constructions that can be raised in public domain literature, I would say that the more illustrations, the better). John Cahir also raises a particularly topical question in his chapter, “The Public Domain: Right or Liberty”: is there a right to the public domain? Such a question and, indeed, many of the issues raised in this book arguably warrant a book/thesis/number of volumes of their own.

Other chapters build on recurring themes in public domain discourse. In his chapter, “The Public Domain and the Creative Author”, Bill Thompson reflects on the public domain, creativity, culture and authorship (and manages to reference Leonardo DiCaprio, Star Trek, The Simpsons, Hamlet and Moby Dick among others in the one chapter- excellent work). Further Johanna Gibson’s chapter “Audiences in Tradition: Traditional Knowledge and the Public Domain” discusses a number of recurring issues regarding the interrelationship between traditional knowledge and the public domain, while also raising the often-neglected question of who constitutes the ‘public’ in these types of discussions.

These are only a sample of chapters in this book; but it should be apparent to the reader that the chapters in Intellectual Property: The Many Faces of the Public Domain encapsulate a number of public domain issues, some new, some recurring. For any public domain or copyright scholar, this is a must-have book; or, even for those who are not so familiar with these issues, the various contributors raise a number of thought-provoking intellectual property issues. I would like to conclude with a quote from Bill Thompson (not regarding Leonardo DiCaprio). He states that (at p. 132):

“The public domain is little understood, rarely defended in the public prints
and under constant attack from those who would have all works of the human
imagination kept under lock and key through a combination of perpetual copyright
and technological protection measures. Even while it persists it is often
hard to determine whether a particular piece of work is in the public domain,
and since the rules differ in different jurisdictions the status of all but the
most obvious – for which read ‘older’ - works must often be considered
questionable.” (citations omitted)

The same is true of the Australian situation. Books such as Intellectual Property: The Many Faces of the Public Domain make us realise these issues, with a view to exploring their implication at a national and international, online and offline, level.

(Next up - a review of 'Digital Copyright and the Consumer Revolution: Hands off my iPod', by Dr. Matthew Rimmer, ANU College of Law)

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