The Public Domain: Enclosing the Commons of the Mind

I have been catching up on more reading this week - James Boyle's 'The Public Domain: Enclosing the Commons of the Mind' has been sitting in my reading tray for about 3 years and I was delighted to have an opportunity this week to take a look at it.

The central point of the book is that 'the line between intellectual property and the public domain is important in every aspect of culture, science and technology.' [pg xvi] Boyle begins by discussing the inherent aspects of intellectual property - that it is nonrival and nonexcludable and notes that financial reward is just one of the motivations behind creation - others are fame, altruism or because of another inherent creative force. [pg 3] Without limiting intellectual property rights, it becomes a system of corporate welfare. [pg 8] He writes:

'...the goal of the system ought to be to give the monopoly only for as long as necessary to provide incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money the are going to recoup from the work with five or ten years of exclusive rights' [pg 11]

He discusses changes to copyright in recent years including automatic protection and term extension and notes that these have changed the contours of copyright regulation in a bad way. [pg 15].

Boyle terms the phrase 'The Jefferson Warning' to refer to the discussion of intellectual property at the time of its inception and the reluctance of the forefathers in granting monopoly rights. In essence intellectual property was not seen as a natural right rather a mechanism to create incentives, there is no entitlement as such to monopoly rights rather they are created by the State as a means to an end, they should not be permanent but rather only last as long as is needed to provide the incentive they set out to achieve, there are inherent dangers associated with intellectual property rights as they may cause more problems than they solve and the State must be careful to only award them when they are really needed. [pg 21-22] These sentiments were echoed by Thomas Babington Macaulay in his speech to the House of Commons in 1841:

'I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.' [pg 22]

Reiterated by Boyle later in the text, he rephrases this to say that the concerns of the forefathers were that intellectual property creates artificial scarcity, high prices and low quality. [pg 37]

Boyle goes on to define the public domain and the commons:

'The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples.
Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive....' [pg 38]

'The term "commons" is generally used to denote a resource over which some group has access and use rights - albeit perhaps under certain conditions. It is used in even more ways that the term "public domain". The first axis along which definitions of the term "commons" vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here.
The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the conditions that your contributions, too, will be freely open to others.' [pg 39]

Boyle sees the public domain as important because it is the basis of art, science and self understanding. It is the raw material from which new things are made. [pg 39] He states that the more commodified and restricted our access to information, the less the market operates efficiently and more poorly it allocates resources in society. Creativity is undermined as the cost of the inputs rise. [pg 40]

Boyle then goes on to discuss the enclosure of land commons in England before referring to the increase in intellectual property rights as the second enclosure. [pg 43 -45] Here Hardin's tragedy of the commons does not apply as works are non rivalrous and nonexcludable. [pg 48] Indeed the increase in property rights creates a different problem:

'Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as the tragedy of the anti commons'.

Boyle then goes on to term the phrase 'The Internet Threat' to refer to the digital environment and perceptions that technological changes empowering copying must mean an increase in property rights. [pg 53] In particular he refers to Napster and the changes that were brought about by file sharing. [pg 53] The logic of perfect control is discussed in detail in Chapter 4. [pg 61] The background to the Napster and Grokster litigation is also discussed. [see pg 71 - 79]

Chapter 6 discusses mashups in detail. In an earlier post here I embedded the YouTube clip to The Legendary KO's song 'George Bush Doesnt Care About Black People'. This is a fascinating chapter which traces the origins of that mashup and discusses the copyright implications for its reuse over time - this is a great example for anyone interested in the origins of mashups and the law around them. [pg 122] In discussing changes that need to be made to the law to allow for mashups Boyle states that one solution is to extend the system of compulsory licenses for cover versions to samples, or in the alternative, to exempt samples shorter than 5 seconds from copyright liability and clarify fair use. [pg 158-159]

Chapter 7 concerns the science commons with particular examples of software patents and synthetic biology. [pg 160]

Chapter 8 focuses on the creative commons and looks at flickr, ccmixter and creative commons [pg 179-181]. Boyle states that losses of sharing are every bit as real as losses from unauthorised copying. [pg 182] Further discussion on this topic looks to the free software movement and how creation of software takes place on a large scale despite a lower level of intellectual property rights. [pg 185]

In Boyle's eyes copyright maximalism was believed and pursued even when it did not make economic sense. [pg 198] It was a creation of a world view not a calculation of profit and loss:

'Not only did many of the rules we ended up with make no sense from the point of view of some of the largest economic players in the area - think of the device manufacturers, the search engines, and so on - they frequently made no sense from the perspective of those proposing them. Attempting to twist the law to make it illegal for technology to interfere with your business model is frequently bad for the industry seeking the protection, as well as for the technology, the markets, and the wider society.' [pg 199]

It was however a sincere belief that more rights would lead to more innovation. [pg 199]

Boyle is particularly critical of the lack of empirical evidence used to support changes in the law with a look at the legal protection for databases in the USA compared to Europe as one example. [pg 205 - 220]

Finally, Boyle proposes a movement along the lines of the environmental movement to lobby for changes to intellectual property law. [pg 230]

An excellent summary of the main points of the book is given on pages 205 & 236.

This is a brilliant book and very easy to read I really do recommend taking the time to look at it.

Further Reading
James Boyle, 'The Public Domain: Enclosing the Commons of the Mind' (2008) available for free at: < http://www.thepublicdomain.org/download/> at 13 September 2011