Cohen, Julie.  “Copyright, Commodification, and Culture:  Locating the Public Domain.”  The Future of the Public Domain : Identifying the Commons in Information Law. Eds. Lucie M Guibault and C. R. Hugenholtz.  Information Law Series. Alphen aan den Rijn : Kluwer Law International: Frederick, Md., 2006. Print.

  • This article understands that there are two sides to the copyright argument: copyleftists say that copyright threatens the public domain; copyrightists claim that the commodification of IP actually leads to greater exposure – and hence access to expressive works – and that commodification in no way undermines public access to and the use of information.
  • Four puzzles highlight the gap in perception between pro-commodificationists and anti-commodificationists:
    • Puzzle 1 – copyright duration – How long does copyright need to last to be the most beneficial for society?
    • Puzzle 2 – priveleges – What are copyright owners allowed to do with their work ?
    • Puzzle 3 – What is copyrightable subject matter?
    • Puzzle 4 – DMCA, DRM, and the public domain – in other words, how much control over encryption technologies are necessary to protect copyright.
  • Part 1 of this article – an investigation of the metaphors of the “public domain.”
  • Part 2 – Traces the history of the public domain metaphor in US copyright law.  Argues for understanding the “public domain” “has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presemptively eligible for privatization” (123).
  • Part 3 – tests the metaphorical construct of the public domain against the descriptive and theoretical accounts of the ways and functions that artistic expression develop.
  • Part 4 – This is a new articulation of the metaphor of the public domain: “The common in culture is not a geographically separate domain, but rather the cultural landscape within (and against and through) which creative practice takes place” (124).
  • The article finds that there is no “biology of creativity”; rather, there is only a sociology.  In other words, creativity is a social practice.  As such, the public domain or the common in culture is not a separate place, but a distributed property of social space.  Ultimately, this leads the author to decide that revising the scope of copyright so that derivatives and copies aren’t as harshly considered.

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