Document Type

Article

Publication Title

Fordham Law Review

Abstract

The debate over the role of the public domain in intellectual property law - its shape, its importance, its contents - is multi-faceted and complex, drawing on differing and often antithetical philosophical, economic and constitutional perspectives. This article attempts to take a new cut at understanding the public domain by asking whether or not, as a matter of constitutional law, there might be some kinds of speech goods that are simply off the table as subjects of intellectual property rights. That is to say, are there some kinds of communicative materials that, once in the public domain can not be propertized? There have been intimations in intellectual property cases - in particular in Harper & Row and in Eldred that some aspects of content are required to be free for use without private controls. Interestingly, first amendment case law, too, has as a recurring theme the notion that there are in the public domain things that cannot be subject to private or governmental controls. This article in a sense is asking how seriously to take Harper & Row and Eldred's dicta on this subject. It's conclusion is, very seriously. The article lays out what the author takes to be the theoretical best case for saying that a part of the public domain is permanently open to free use. It then goes on to show where and how support for this theory can be found, and finally indicates something of the shape of such a mandatory public domain, and some of its implications for existing and proposed new forms of intellectual property rights.

First Page

297

Volume

73

Publication Date

2004

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