The Public Domain Through Property's Lens

David Fagundes, Property Rhetoric and the Public Domain, 94 Minn. L. Rev. 652 (2010). Michael Carroll Are patents and copyrights "property," and does it matter? While the question is not new in the field, David Fagundes provides a fresh perspective, arguing persuasively that the question should be understood as rhetorical rather than ontological, and that, yes, it does matter. In Property Rhetoric and the Public Domain, Professor Fagundes aims to build upon the work of scholars working in a tradition he labels the "social discourse of property" to reorient the use of property rhetoric with respect to "intellectual property" away from a solely private rights understanding of property. By doing so, he argues, advocates for a positive conception of the public domain will be better equipped to blunt the force of property rhetoric deployed to expand the subject matter, scope or duration of copyrights and patents. This article follows a prior piece, Crystals in the Public Domain, 50 B. C. L. Rev. 139 (2009), in which he argues that ex ante uncertainty about user rights in copyright is a significant problem that could best be addressed by clearer boundaries between private and public rights in copyright law. While that argument addresses the functional advantages of clearer public rights to use another's copyrighted expression, this piece argues that there are significant rhetorical advantages to a more clearly defined public domain in copyright law. In his words, "[b]y framing their concern about the public domain as a concern about preserving public property (rather than simply resisting property), actors concerned about this issue can restore balance to this debate." (P. 701.) Continue reading "The Public Domain Through Property's Lens"

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