Chapter

Property and the Public Domain

Hanoch Dagan

in Property

Published in print February 2011 | ISBN: 9780199737864
Published online May 2011 | e-ISBN: 9780199894994 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199737864.003.0013
Property and the Public Domain

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This chapter relies on the lessons from Chapters 1 and 2 to enter one of the most intense debates on the question of property's frontiers: the delineation of the borders between intellectual property and the public domain. Friends of the public domain are typically suspicious of property talk. Property is perceived as the foe, epitomizing the threat of a shrinking public domain and the expanding rights of copyright holders to preclude others from using cultural artifacts. The chapter examines this commonplace view, which is considered misguided and unfortunate. It is misguided because the split between a property discourse and a thriving public domain is largely illusory. Nothing in the language of property necessarily invites the agenda of the content industry. Quite the contrary: both the form and the substance of property, as conceptualized in this book, convey helpful lessons for achieving the goal of re-crafting a thriving public domain. It is unfortunate because the concept of property has enormous rhetorical power in shaping people's expectations and, therefore, in constructing what they deem normal, obvious, and thus clearly justified. For both these reasons, friends of the public domain should embrace property rather than struggle against it.

Keywords: property; intellectual property; public domain; copyright holders

Chapter.  3797 words. 

Subjects: Constitutional and Administrative Law

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