Affirmative Public Domain

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Towards an affirmative public

domain
Christopher M. Toula & Gregory C. Lisby
Published online: 11 Mar 2014.
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To cite this article: Christopher M. Toula & Gregory C. Lisby (2014) Towards
an affirmative public domain, Cultural Studies, 28:5-6, 997-1021, DOI:
10.1080/09502386.2014.886490
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Christopher M. Toula and

Gregory C. Lisby
TOWARDS AN AFFIRMATIVE PUBLIC

DOMAIN
Two competing and yet complementary philosophical concepts form the foundation
for the legal protection of intellectual property – ‘competing’ in that created works
protected by copyright are unavailable for unrestricted use by others as a result
of the economic monopoly given to the works’ owners, and ‘complementary’ in that
the presumption is that works no longer protected by copyright serve as the basis for
the creation of new copyrightable works. These unprotected works comprise the ‘public
domain,’ which has never been affirmatively defined. In Golan v. Holder (2012), the
US Supreme Court concluded that such a realm is constitutionally unimportant. This
research contends, however, that the Court’s decision is incorrect, that Golan, federal
legislation, and international treaties threaten to bring larger and larger portions of
cultural and intellectual content under the control of a property regime that does not
understand the contradiction inherent in the notion of absolute property rights in
intangible goods. The result is that the public domain is under tremendous pressure
from those entities which have the most to gain from expanded authorial rights and
from a weakened and less inclusive public domain. Citizens thus will have fewer
rights to access and freely use their culture as they choose. The eventual significance
of this evolution will be that further creativity and innovation will be stifled, the
opposite of the intention of intellectual property law. In this article, we develop an
affirmative definition of the public domain, which we believe will correct the
imbalance in current intellectual property law.
Keywords copyright; intellectual property; public domain; fair use;

Golan v. Holder; authorial rights
At present, there is a broad movement conducted on the part of the cultural

content industries to enforce on a global scale a greatly strengthened system of
intellectual property (Hamelink 2004, Tyfield 2010). Laws, such as the
Copyright Term Extension Act and the Uruguay Round Agreements Act
(URAA) and the resulting litigation, threaten the balance between private
property interests and public interests in cultural production. The recent case of
Golan v. Holder (2012) (from here, Golan) exemplifies this unbalancing. At stake
was the status of the public domain, the place where works go when their
copyright protection runs out. The key ruling in Golan was the US Supreme
Cultural Studies, 2014
Vol. 28, Nos. 5–6, 997–1021, http://dx.doi.org/10.1080/09502386.2014.886490
– 2014 Taylor & Francis
998 C U LT U R A L S T U D I E S
Court’s outright rejection of society’s interests in the public domain. Its

rejection is due, at least in part, to the opaque status of the public domain in
American law. While American jurisprudence has traditionally held that the
public domain is an important part of our copyright system (Ochoa and Rose
2002, Ochoa 2003), neither the courts nor Congress has ever defined the public
domain in affirmative terms. In this article, we aim to explore the ramifications
of Golan’s assault on the public domain and make the case that the public
domain is so important to our copyright system that an affirmative definition is
essential to maintaining the balance copyright was meant to secure.
In 1994, the US Congress enacted the URAA (1994), designed to bring US
laws and statutes in line with international copyright treaties, such as the Berne
Convention, and the various changes required of signatory nations. A particular
portion of the URAA, Section 514, titled ‘Restored Works’, addressed the
copyright protection of foreign intellectual property in the USA. It reads in
part, ‘Copyright subsists, in accordance with this section, in restored works,
and vests automatically on the date of restoration’. It continues, ‘Any work in
which copyright is restored under this section shall subsist for the remainder of
the term of copyright that the work would have otherwise been granted in the
United States if the work never entered the public domain in the United States’
(Uruguay Round Agreements Act 1994, p. 162, emphasis added). To summarize,
what Section 514 did was presumptively establish copyright protection for all
future and past works produced in signatory nations and, more importantly,
take any work already in the public domain of the USA and ‘restore’ its
protection under US law if that work enjoys protection in its country of origin.
Before proceeding, we wish to make clear what an impressive change the
URAA was in American copyright law. According to Hirtle (2008), for most of
its history, the USA was a ‘copyright pirate nation’, which did not respect
foreign copyrights, a situation loathed by foreign authors such as Charles
Dickens (Burk 2009). Many firms in America made large profits from
publishing foreign books, poems and maps without paying any compensation to
their creators. America’s lack of respect for foreign intellectual property is
corroborated on a grander scale in Chang’s (2008, pp. 127–131) book, Bad
Samaritans, in which he argues that most wealthy countries followed a similar
pattern of intellectual property law. He finds that non-enforcement of national
intellectual property laws to protect foreign inventions and works was the norm
historically, and that the free movement of information was crucial to the
development of nations such as Germany, Japan, and the USA. What we want
to emphasize here is that the URAA was a break with American legal norms on
an unprecedented scale. Prior to the URAA, literally millions of foreign works,
such as Peter and the Wolf, the British films of Alfred Hitchcock, some works by
Picasso, films by Federico Fellini and books by C. S. Lewis were in the public
domain and thus could be used by anyone without penalty or liability (Liptak
2011). Following the law’s passage, these works were put under copyright
T O WA R D S A N A F F I R M AT I V E P U B L I C D O M A I N 999
protection and their use without paying royalties to their copyright holders
could result in large financial penalties.
Fear of financial penalties and threats to their livelihood resulting from the
removal of so much cultural content from the public domain motivated a group
of, ‘orchestra conductors, educators, performers, film archivists and motion
picture distributors’ (Denniston 2012) to sue the federal government to force
the return of the works affected by the URAA to the public domain. In Golan1
(2012) people who utilized works in the public domain, challenged the URAA
on two fronts. First, they challenged the ability of Congress to take works from
the public domain and place them under copyright protection. Under Article I,
Section 8, Paragraph 8, known as the Copyright Clause of the US Constitution,
Congress has the power ‘To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries’. The petitioners argued that the
Copyright Clause did not give Congress the power to move works from the
public domain into protected status. Second, the petitioners argued that the
First Amendment rights of those who had previously exploited public domain
works had been violated when those works were moved to protected status. In
effect, the petitioners were asking if the Constitution required a, ‘“bright line”
drawn around the public domain’ (Golan v. Holder 2010) to protect the public
interest in continuing creativity and innovation.
While this may seem abstract, the consequences are concrete. The Chronicle
of Higher Education interviewed Lawrence Golan for its website in 2011and
quotes him as saying, ‘You used to be able to buy Prokofiev, Shostakovich,
Stravinsky. All of a sudden, on one day, you couldn’t anymore’ (Parry 2011).
With potentially ‘millions’ of works being removed from the public domain this
is no small amount of content. When Golan says ‘buy’ he means it literally.
According to the story, Golan’s budget allows for the purchase of sheet music
at the rough cost of $150. The orchestra can keep the original forever and copy
the score onto sheets for the performers. The article continues, ‘But works
under copyright are typically available only for rent. And the cost is significantly
higher: about $600 [sic] for one performance’ (Parry 2011, emphasis added).
Golan’s budget for music rental and purchase is $4,000 per year. The article
references a study done by the Conductor’s Guild which found that 70 percent
of its 1,600 members simply could not afford to purchase music still under
copyright (Parry 2011). As Anastasia Tsioulcas writes for NPR’s website, ‘The
financial differences between a public domain work and a work under copyright
can very effectively be the deciding factor between whether or not an
orchestra’, has a broad, diverse and culturally enriching repertoire for itself and
its audience. At stake in Golan is not just the ability of cultural institutions, such
as regional theatres, music ensembles, and schools to use works at lower costs,
but potentially their financial viability as institutions of cultural performance,
creation and diffusion.
On 18 January 2012, the Supreme Court of the United States (SCOTUS)

issued its decision in Golan. In a 6-2 ruling, the Court found that Congress’s
move to place unprotected foreign works under copyright protection did not
violate the Copyright Clause of the Constitution.2 Justice Ruth Ginsburg
writing for the majority found that ‘The text of the Copyright Clause does not
exclude application of copyright protection to works in the public domain’
(Golan v. Holder 2012, p. 884). The petitioners argued that if Congress had the
right to restore public domain works to copyright protection, then there was a
potential danger of perpetual copyright, resulting in a public domain deprived of
works to rejuvenate the resources for new artistic production. Ginsburg’s
opinion rejected this logic and noted that copyrights were still limited by the
Constitution. Fears that the continual extension of this power would deprive
the public of free works for future content creation were not the concern of the
SCOTUS.
On the First Amendment challenge, the court held that not only had the
right of the petitioners not been violated but they actually had no rights in
public domain works. Ginsburg wrote, ‘Rights typically vest at the outset of
copyright protection, in an author or rightholder. Once the term of protection
ends, the works do not revest in any right-holder’. On the contrary, ‘the works
simply lapse into the public domain. Anyone has free access to the public
domain, but no one, after the copyright term has expired, acquires ownership rights in
the once-protected works (Golan v. Holder 2012, p. 892, emphasis added). So even
if the petitioners’ livelihoods depend on their free access to works by individuals
who are no longer alive, they have no right in an American court to defend
themselves. In a sense, this is an inversion of the ‘tragedy of the commons’ in
which a resource is depleted because of common ownership (Lessig 2005, Boyle
2008). Laws such as the Copyright Term Extension Act and the URAA and
court cases such as Golan mean that there is a very real danger of copyright
protections being extended indefinitely. In turn, the public domain will suffer as
fewer works become free to common use.
The legal story just described is symptomatic of a much larger intellectual,
social and legal trend in the Western world. The rise of neoliberalism, the
Washington Consensus, over the past 40 years is well documented (Steger
2002, Stiglitz 2003, Giroux 2004a, Harvey 2007 and others). As an ideology it
establishes commoditized market relations as the ideal form of social
organization and chips away at the value of anything collective in favour of
the individual. Kawai (2009, p. 19) succinctly argues that ‘Neoliberalism as a
cultural ideology assumes that humans are abstract individuals detached from
various personal and social conditions and contexts, and therefore social issues
such as poverty and unemployment are not examined structurally but viewed as
‘personal’ problems for which each person is responsible’. An ideology such as
this supports hierarchy and denies the mutually constitutive factors in identity
and social issues as well as the sources of both. Conversely, an original author
would be entitled to interminable copyright protection, with no concern for the

effect on other individuals or society as a whole. In the neoliberal worldview, a
robust public domain where content is, in Justice Louis Brandeis’ memorable
phrase, ‘free as the air to common use’ (International News Service v. Associated
Press 1918, p. 250) would be an aberration to be stamped out.
We feel that Golan invites appraisal of the key issues at stake in the
maintenance of a public domain and in society’s vested interests in its protection.
As Ginsburg’s opinion makes clear, the SCOTUS has rejected the idea that the
public domain is something that represents ownership. This position is, at least
in part, due to the public domain’s lack of an affirmative definition, a definition
that definitively states what the public domain is for, who owns it and how it
should function and be protected. Without an affirmative definition, those who
make use of public domain works cannot assert their rights in historical content.
In legal terminology, ‘affirmative’ indicates that there is something positive in
the law that protects an individual or group from censure for their actions. For
example, it is possible for an educator to use a certain amount of a protected
work because the Copyright Act of 1976 allows an affirmative defence for that
use. While even that protection may be under threat (Aufderheide and Jaszi
2011), those accused of violating copyright protection can make the argument
for fair use to defend themselves.
Importantly, the discourses on the rights of authors vs. the public good,
monopolies in distribution vs. open access and individual originality vs. collect-
ive production are not new but instead have a long history reaching back to the
early Enlightenment. These discourses are still relevant despite, or perhaps
because of, all the technological changes that have occurred in the last two-and-
a-half centuries. In the New York Times, Liptak (2011, p. A16) asked if there was
‘a constitutional line Congress may not cross when it comes to the public
domain’. We feel that if there is not such a line, as the majority in Golan thinks,
then there should be one.
We begin with an analysis of the public domain itself, conflicts in its
definition in modern scholarship, its role in artistic production and democratic
discourse and some of the threats it faces not only in the USA but also in
multilateral trade agreements, such as the URAA. Our goal is to show that a
public domain defined as the absence of ownership rather than collective
ownership is more easily dismissed in the face of neoliberal discourse. We also
show how such conceptions are grounded in received Western notions of
legitimacy in ownership and cultural production. Having established the con-
tours of the public domain in modern society, we turn to the historical aspects
of its establishment. We feel the scholarship on the subject demonstrates that
the public domain is one-half of a system of information and content regulation
in Anglo-American law designed to balance the competing interests of content
distributors, authors and the general public. That balance is still relevant, and
understanding the historical continuity of these legal debates prepares scholars
and thinkers to defend the collective aspects of cultural production. Finally, we

develop our version of an affirmative definition of the public domain. Our
understanding of the historical discourse indicates that debates surrounding
copyright and public good are different in degree rather than kind. Nevertheless,
as the above legal drama illustrates, nations are not grappling with these issues
in a vacuum. One nation’s regime of regulation may cause friction with
another’s even in the face of the harmonized laws the Uruguay Round enforces
(Boateng 2011). Despite these concerns, in the conclusion, we reiterate our
belief that an affirmative, positive definition of the public domain that can be
integrated into statutes is needed if modern societies are to protect their rights
to access information and their collective culture.
The public domain
Legal scholars Coombe and Herman (2004) provide a useful anecdote to begin
an examination of the public domain. They relate the confusion of their students
when asked what the word ‘property’ means. It is a confusion based in ‘the
seeming obviousness of the answer’, as opposed to any unfamiliarity with the
idea of property. The students’ response generally is something along the lines
of ‘property is when I own something’ (p. 560). Their anecdote neatly
encapsulates the condition of copyright protection and what happens to the
protected work after that protection expires. In Western thought, it is easy to
understand that something belongs to me and not you; it is more difficult,
perhaps counterintuitive, for Westerners to think of something as extant but
not owned. But this condition, existing but not owned, is part of the very
nature of a public domain work and thus why an affirmative definition is so
important. It is, in legal terms, not a particular individual’s property and is,
therefore, open to all. It is something other than private property.
A concrete example of an alternative intellectual property regime may
serve to illustrate the primacy of private property in the West. In his book
Japanamerica, Roland Kelts (2007) analyses the practice of doujinshi in which the
characters, settings and content of copyrighted comics, manga in Japan, are
written into fan-created new situations, sometimes veering towards the
pornographic. It is an ‘industry’ that is almost as large as normally published
comics where fans produce content that is meant to be stylistically as close to
the original as possible and is sold openly, often in specialized shops. Manga
creators and owners do not view this as theft but as ‘homage’. However, even
as the practice has been imported to the USA, and elsewhere in the West, fans
may run into the, ‘bright red lights of American copyright laws, not to mention
their considerably more plentiful, more astringent, and more fearful legal
enforcers’ (Kelts 2007, p. 171). Doujinshi is also illegal in Japan, but Kelts notes
that the publishers do not use their power to enforce laws that are on the
books. While the Japanese have the legal framework in place to stop doujinshi,
the creative repurposing of a work still under copyright is tolerated.3

Apparently, the property manga creators own is not as sacrosanct as the
American content industries would like.
But what kind of property is a book or a poem, or for that matter computer
code? It is not the kind of property that another person can be excluded from by
my possession of it.4 It is not an orange where if I eat it, you cannot eat it. If I
take inspiration from Dracula or The Seven Samurai and craft a story using
elements from them, it does not diminish your possible enjoyment of them.
Products of our imaginations such as books, video games and even this essay are
intangible property. Like the doujinshi referenced above, it is possible to copy
and modify it endlessly, and doing so does not diminish its basic value from one
person to the next. At any given moment, it will have the same basic utility to
someone who is interested in it.
The opposite of property

As we noted above, when a work’s term of copyright expires, it enters the
public domain. Boyle (2008, p. xiv) coined a pithy phrase to describe a work in
the public domain: ‘the opposite of property’. In other words, whatever it is, it
is not owned. Boyle’s turn of phrase highlights an attitude towards ownership
and property in Western society that is actively hostile to the public domain.
Jack Valenti, former head of the Motion Picture Association of America,
provides us with a characteristic example in his 1995 testimony to Congress, ‘A
public domain work is an orphan. No one is responsible for its life. But
everyone exploits its use, until that time certain when it becomes soiled and
haggard, barren of its previous virtues’ (Valenti quoted in Ochoa 2003, p. 256).
When Valenti decries the exploitation of a public domain work and the
degradation that use causes, he is missing the point. The use of said work does
not, indeed cannot, degrade it in the sense Valenti is implying. Intellectual
properties are intangible, but Valenti describes them in terms of the ‘tragedy of
the commons’ where if something is collectively owned, or is not managed by a
single person, then it is overused and eventually drained away. But as Boyle
(2008) demonstrates, it is not the content that is destroyed in the public
domain, merely the ability of the former owner of the copyright to profit from
said content’s uses. What Valenti did in the above quote is give the attributes of
the tangible to the intangible. He also implies that something is of value only in
as much as it is owned.
Litman, in her influential essay The Public Domain, provides us with a legal
scholar’s definition of the public domain that illustrates the problem of
connecting property ownership with value. She states that the public domain is
‘a commons that includes those aspects of copyrighted works which copyright
does not protect’ (1990, p. 968, emphasis added). But Benckler (1999, p. 361)
correctly observes that definitions such as Litman’s ‘evoke an intuition about
the baseline, while not in fact completely describing it’. Put another way, the
public domain is defined negatively, not by what it is, but by what it is not. The
sense of the negative in thinking about the public domain is furthered by
Ochoa’s (2003, p. 256) observation that in modern definitions, ‘the public
domain is marked by the absence of ownership’. This is no small thing, for if
the public domain is only understood as an absence of ownership and is only
defined in terms of what it is not, it becomes difficult if not impossible to say
what it is for or to give it a positive meaning for society more generally.
The status of intellectual property, described above, illustrates the difficulty
in defending the public domain. When under the protection of copyright, the
force of law prevents the unauthorized reproduction of the work, even though
the ‘theft’ that occurs upon such copying does not remove its basic value as a
work. The work is treated as a definable piece of property even though it lacks
those characteristics. When the work enters the public domain, it becomes
something other than property in the sense that no individual can claim it as
hers. But a public domain work is defined more by what it is not than what it is.
It lacks the affirmative properties of a right or defence. This is doubly a problem
because these two states, property and its opposite, are not diametrically
opposed states of being for a work. This point is illustrated when we consider
the role of the public domain in creativity.
Public domain and creative production

Even if Litman’s definition of the public domain leaves something to be desired,
she makes a crucial point when she states, ‘originality is a legal fiction …
inherently unascertainable …. Because authors necessarily reshape the prior
works of others, a vision of authorship as original creation from nothing … is
both flawed and misleading’ (1990, p. 969). In light of our discussion of
property above, let us consider what copyright does to a work under its
protection. In Litman’s view, it erects a fence around that work and in effect
says that what the author of that work did was create something that is original
enough to warrant legal protection for a period of time. Litman demonstrates
that all creative work is influenced by what came before. As such, the rigid
enforcement of originality in copyright law remains difficult if not impossible,
and the focus on originality as a mark of ownership limits future creativity. Even
as copyright offers incentives through protection, it blocks the give and take
between authors and their cultural environment. A point expressed well by
Hemmungs Wirtén (2006, p. 285), ‘More fences do not equal more creativity,
just the opposite. Nobody finds inspiration in a vacuum … we depend on the
access to the work of others and we should not… avoid partaking in culture’s
continuing intertextuality’.
The historical aspect of authorship and originality is crucial to copyright law
as they are the marks that confer ownership. However, overemphasizing
them unbalances copyright regimes that stabilize public and private interests.
For now, we should note that the person of the author, the individual who by
his/her creative genius produces something wholly new is not in good repute.
Both Barthes (1978) and Foucault (1984) problematized the author and the
originality by which they were meant to be evaluated; it is not a point that
needs to be belaboured. What is important is that even as the concepts of
authorship and originality are destabilized in literary studies and legal
scholarship, they are still a bedrock justification for strengthening copyright
protections. As Coombe (1998, p. 62) observes, intellectual property regimes
base their ‘intelligibility upon the assertion of a unitary point of identity – a
metaphysics of authorial presence – that denies the investments of others in the
commodity/text’. Thus, focusing on the ‘unitary author’ elides the role of the
public domain in fostering expression and in helping more people to become
authors. She makes clear that such a situation can have drastic consequences
when much of our shared culture is the product of mass media conglomerates.
As copyright terms continue to increase in length, cultural products will remain
in the hands of their owners who with increasing frequency are not individuals
but corporate entities.
That intellectual property laws are being used by corporations to constrain
speech that is critical of them is a documented phenomenon (Coombe 1998,
McLeod 2001, Harold 2004). Indeed as Katyal (2006) notes, all laws, including
intellectual property law, sanction some activities while censuring others. But
this is something the public domain was also meant to address.
Public domain and anti-monopoly

The public domain’s role in fostering creativity is threatened when fewer works
enter into it. The drafters of the original copyright statutes in the 1700s
understood this problem in terms of monopoly.5 Monopolies prohibited some
people from certain activities. In other words, copyright restrained the freedom
of some individuals while enhancing the freedom of others. An examination of
the arguments made by some key thinkers of the period demonstrates that, like
the worries expressed above by modern legal scholars, those in the past shared
similar fears of too much power concentrated into the hands of too few.
In their article on the origins of the patent and copyright clauses, Ochoa
and Rose (2002) offer a prescient example of this concern in the
correspondence of Thomas Jefferson. In letters exchanged in 1788 with John
Madison during the ratification debates, Jefferson suggested that the
Constitution should provide for ‘the restriction of all monopolies’. His
thinking, elaborated in a later letter, considered ‘the benefit even of limited
monopolies’ to be ‘too doubtful to be opposed to that of their general
suppression’ (Boyd 1956, pp. 440, 443). Jefferson feared that any concentra-
tion of power, political or intellectual, in the hands of the few would endanger
American democracy to the point that he opposed the basis of copyright law in
the USA. Madison replied to this view by saying that monopolies are ‘justly
classed among the greatest nuisances in Government … Monopolies are
sacrifices of the many to the few’ (Boyd 1956, pp. 16, 21). Ochoa and Rose
find that these concerns were common among delegates at the Constitutional
Convention. The important issue here is that the framers viewed copyright not
as a natural right in the sense of Locke, but as a government-granted privilege
to encourage production that should inevitably expire lest the costs to society
run too high. As we shall see, Lockean natural rights and private property
were, and remain, important in intellectual property law. Nevertheless,
Parliament and Congress balanced property interests with public interests in
their statutes and case law.
Thomas Babington Macaulay eloquently voiced this view in Great Britain in
1841 during debates concerning the extension of the protection granted under
the Statute of Anne. Macaulay argued that authors should be remunerated, but
he also noted that two systems allowed this to occur: patronage and copyright.
Macaulay simply rejected patronage, leaving only copyright. Macaulay stated,
‘It is good that authors should be remunerated; and the least exceptionable way
of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake
of the good we must submit to the evil’ (Macaulay 1897, p. 198). Again, we
can see that discourse on intellectual property stressed the balance needed
between authors and owners versus society. While authors deserved
remuneration, these thinkers argued that it should not come at the expense
of the masses that strong monopoly privileges would disadvantage.
Ochoa (2003) observes that the bulk of American jurisprudence, from the
passage of the Copyright Act of 1790 to Feist Publications, Inc. v. Rural Telephone
Service (1991), holds that the purpose of the copyright and patent law is to
promote progress and learning. This understanding of the public domain only
shifted with the recent Copyright Term Exension Act of 1998 and the resulting
Eldred v. Ashcroft (2003). In this sense, Golan continued the SCOTUS’ chipping
away at the public domain. Until now, judicial decisions over those two
centuries have reflected the view apparent in the historical sources we have
cited, and in our analysis below, that a vigorous public domain is a prerequisite
for a society to advance.
As we discussed briefly in the introduction, the recent changes in intellectual
property law reflect the growth of neoliberal ideology. The quotation from Jack
Valenti mentioned above clearly represents a neoliberal attitude given its focus
on private ownership as the means by which works are preserved and made.
The jurisprudence and legal discourse described above indicates a very clear
model, fraught with its own problems and contradictions, of course, for the
development of society. What the shift in intellectual property law, as well as
various fields such as education and journalism (Frank 2000, Giroux 2004b),
indicates is the normalization of an ideology that actively negates the positive
role of collective action in social life (Steger 2002).
Thus, our legal codifications on copyright, the codification of cultural
policy, have historically privileged the usefulness of open information. But this
is not just about the role of markets in setting prices. Copyright laws also have
impact on the nature of cultural production through the eventual release of the
protected material into the public domain. However, the public domain model,
which balances limited protection and public access, has only been defined by
what it is not and therefore, does not have an affirmative definition that can
empower people to makes claims of ownership or interest in it. As such,
content industries tend to emphasize concepts such as authorship and originality,
while proponents of a strong public domain lack strong signifiers with which to
make a case. While the issues facing our modern information society may seem
different than the ones facing the framers of the first copyright laws during the
1700s, the same problem confronts us, how to equitably support content
production while also ensuring that the public at large benefits from the
‘sciences and useful arts’. These concepts that give a work its social meaning are
not a product of our current situation but are an inheritance from a body of
social, cultural, intellectual and legal thought.
Origins of intellectual property
Legal scholar Mark Rose writes that the earliest reference to copyright he has
unearthed comes from John Milton’s Aeropagitica in 1644 where Milton writes,
‘‘the just retaining of each man his several copy (which God forbid should be
gainsaid)’’ (cited in Rose 1994, p. 28). Four years later, in the Eikonolastes,
Milton comments on a ‘human right’ that all ‘authors’ have in their work that
lasts during life and after death. Rose relates Milton’s words on ‘copy’ to
illustrate the changes in the perception of the role of the writer in Western
society. During the period, the production of culture moved from a patronage
system to a market system. At the same time, even as authors could stake an
ownership interest in their works, statutes codified limited terms that ensured
eventual public access to works at lower costs.
This complex transformation has four parts that need to be explicated to
address the role of a vigorous public domain in society. The first is aesthetic –
the redefinition of the origins of literary value. The second is economic – books
needed to become a mass market item within the reach of a wider population
than the elite to precipitate a change in the traditional understanding of writers.
The third we might call philosophical or social, and it is related to the aesthetic
and economic. What authors produced needed to be viewed as their personal
property rather than as the result of patronage. At the same time, the work
became something for the literate masses, not just rich patrons. This is where
the work of John Locke enters our purview. Finally, aesthetic arguments,
economic considerations and Locke’s theory of private property became
distilled into the ‘first true copyright statute’ – the Statute of Anne (Boyle
2008). The statute balanced the remuneration of authors with the need of
society as a whole to have access to works. We do not wish to suggest that all of
these intellectual, economic, philosophical and legal trends are somehow

completely discrete and separate from each other or that this process was free
of conflict. They interacted in multifarious and intricate ways to move countries
to enact copyright, just as these trends move copyright law today.
The pre-enlightenment/romantic author

Woodmansee’s (1984, 1994) research on the concept of authorship exposes
‘collectivity’ as a key trait of the author in the Middle Ages and the Renaissance.
The role of the writer – as opposed to the author – in this period was not the
individual with property rights that modern law privileges, whose ‘creative
genius’ was held up as an example of originality. Originality, breaking with
defined modes of literary thinking, was not considered a positive trait as it often
is today. Woodmansee (1994, p. 17) writes that a book, ‘derived its value and
authority from its affiliation with the texts that preceded it, its derivation rather
than its deviation from prior texts’. Further, if writers produced content that
was considered particularly impressive, it was not the result of their genius but
inspiration from a muse or by God.
Two of Woodmansee’s observations are especially relevant. One is the
inherently collective nature of pre-Enlightenment content creation. The writer
of the text then was not considered more important than the book binder or the
printer. The process of creating a book, which was accomplished through
patronage as opposed to profit motivation, did not entail identifying any
particular individual as especially worthy of praise. Writers were ‘master of a
craft’ and part of a long tradition, who may exercise their craft with particular
skill but are not the originators of the craft, nor are they valued if they deviate
from that tradition. Furthermore, Woodmansee (1994) observes that writers
perceived themselves in these terms. Writers would, in time, change their view
of themselves and their occupation, but this process was long and drawn out, its
distillation into law distant.
The second important concept we derive from Woodmansee is the
externalized nature of the writer’s inspiration. Writers, as the master of a craft,
‘manipulated’ sets of rules and expectations and as such were not the source of
whatever aesthetic or literary value the reader might derive from their work.
The writer was, in Woodmansee’s words, an ‘instrument’ of the muses or the
divine and as such did not deserve the singular credit and adulation modern
people have come to expect an author to receive.6 She (1984) notes that these
aspects of Mediaeval/Renaissance writers, as craftsman and externally inspired,
could be considered mutually exclusive. But they did coexist well into the
eighteenth century when several factors precipitated the shift from writer to
modern authorship.
Here, we have briefly sketched an outline of the aesthetic and literary role
of the writer in the Middle Ages through the Renaissance. Though obviously
simplified,7 we are attempting to demonstrate the contingent and historical
nature of modern conceptions of the author and of property. In the 1700s, the
aesthetic and literary values shift in a series of debates that shaped the structure
and values of modern intellectual property law.
Aesthetics, originality, and property

Aesthetic values prior to the 1700s held the skillful use of previous work and
tradition, as opposed to the development of original work and ideas, as the
prevailing measure of literary worth. Recall that the source of the writer’s
inspiration was external to them. This sentiment is well expressed by Alexander
Pope in his Essay on Criticism (1711), a passage quoted by both Rose and
Woodmansee, ‘True wit is nature to advantage dressed; What oft’ was thought,
but ne’er so well expressed; Something, whose truth convinced at sight we
find, That gives us back the image of our mind’ (Woodmansee 1984, p. 438,
Rose 1993, p. 6). This passage, as Rose notes, defines ‘true wit’ as the ability to
call into the reader’s mind ‘truths’ found in nature. All a writers does, a poet in
this instance, is examine nature and describe it with more skill than their
contemporaries.
Woodmansee contrasts Pope’s words with William Wordsworth’s who, in
1815, felt that a literary genius was ‘someone who does something utterly new,
unprecedented, or in the radical formulation that he prefers, produces
something that never existed before’ (1984, p. 430). These quotations
demonstrate changes in aesthetic values that occurred in Britain during the
eighteenth century.
Literary property
A seminal essay on authorship by Edward Young, Conjectures on Original
Composition (1759), exemplifies the intellectual connection made during the
period between originality and property. As early as 1728, only 17 years after
Pope, Young argued that ‘in every work of genius, somewhat original spirit
should be at least attempted … Originals only have true life, and differ as much
from the best imitations as men from the most animated pictures of them’
(Young cited in Rose 1993, p. 6). Common interpretations of literary value
prior to the 1700s were predicated on conformity to classical modes and motifs
and inspiration derived from external sources not the individual author. What
Young, as well as Addison and Johnson among others, argues is that imitations,
while having some value, cannot attain the worth of an original. In the process
these critics, perhaps unintentionally, blended the literary aesthetic discourse of
originality with that of ‘possessive individualism’, as exemplified by John Locke.
In his Two Treatises on Government (1690), Locke argues that a person has a
property right in things he/she has improved or made with his/her labour. This
conception of property converged with the ascendant view of the authors’
original work as their personal ‘property’ expressed by Young. In an oft quoted
paragraph of Conjectures, Young argued that the man who ‘reverences himself’
over the ancients will receive the ‘world’s reverence,’ that his works will have
special distinction and that his works will be his property, ‘which property
alone can confer the noble title of author’ (Morley 1918, p. 24, emphasis in
original). However, what Young wrote later exhibits the tension between the
individual and the collective in intellectual property law. The writer who
imitates the ancients, ‘will never stand alone; he makes one of a group, and
thinks in wretched unanimity with the throng’ (Morley 1918, p. 25). In the
first quote, Young makes an explicit connection to ‘property’ as what one owns
by virtue of his/her having created it. But in the second quote there is the hint
of the individual identity conferred upon those who create original works.
Young said that the writer’s work is his/hers by virtue of the labour spent in
the act of creation. This mode of thinking could not exist in the ‘corporate’, to
use Woodmansee’s (1994, p. 24) term, writing prior to the 1700s. As literary
work came to be valued for its originality, it also became associated with private
property.
Rose was careful to note that Young’s conception of literary property was
not really what a person today would understand as an owned, copyrighted
work. Young himself compared literary property to the landed estates, where
originality confers a title much like being a baron or an earl, in a relationship
closer to feudalism than capitalism. But the word property contains an
inevitable ‘commercial aura’ and, ‘the commodity value of writing is often just
beneath the surface of eighteenth-century discussions of literary worth’ (1993,
p. 118). Further, it is commodity value as property, in the sense that what one
makes is something that she also owns, that modern intellectual property law
protects. In Rose’s succinct wording, ‘the Lockean discourse, with its concern
for origins and first proprietors, blended readily with the aesthetic discourse of
originality’ (1994, p. 30). William Enfield’s essay, Observations on Literary
Property (1774), made the connection explicit when he compared the
inheritances of land and a ‘fruitful mind’. A person who possessed one or
the other will ‘cultivate’ it, and thus it is ‘equitable’ to receive a ‘fair exchange’
from the labour an individual applies to either (Enfield cited in Rose 1994,
p. 38). In Enfield’s and Young’s view, the work of an author is not much
different from that of a steward of the land in the sense that both are entitled to
the profits of their labour. Nonetheless, Enfield’s invocation of a ‘fair exchange’
beckons us to consider what is in fact fair.
The language in which the ‘proprietary rights’ of an author are expressed by
these thinkers is crucial. In defence of their work and rights, they equated
intangible literary property, the ideas in a book, with tangible property, the
physical book. In Locke’s terms, it makes a natural right for the author to
exclude access to something that cannot be held and touched. The issue of
tangible versus intangible property remains relevant today. Here we feel some
context concerning the ‘commercial aura’ of books and other works is
warranted before examining these effects on the laws of eighteenth century

Britain and, eventually, the USA.
The market of readables

A basic statistic aids in understanding the increased prominence of literary work
in the aesthetic, philosophical and legal discourses of eighteenth-century Britain.
Anderson (2006) observes in his seminal work on nationalism, Imagined
Communities, that more than 20 million books were printed from the time of
Gutenberg to the end of the fifteenth century. In the subsequent century, more
than 200 million books were printed. Anderson’s main argument on national
identity is not as tangential as it may appear. Just as stress on the welfare state
and the energy crises of the 1970s opened the way for neoliberal policy
prescriptions (Steger 2002, Prasad 2006, Harvey 2007), the increase in literacy
and the dropping costs of printed material shaped the context in which
Parliament passed laws on copyright. Laws, and their cultural underpinnings,
then go on to inform, shape or transgress other possible intellectual property
regimes. In the context of nascent nationalism, the regulation and spread of
the referents which people use for identity construction, novels and newspapers
in Anderson’s study, is not simply a matter of the market. Laws regulate and
shape the spread of material from which that national identity can be
constructed and checked against. If prior to the printing press, books were
written for patrons, afterwards they were printed for a mass audience. While that
expanded market meant massive profits for whoever controlled the ownership
of books and the right to print them, it also meant that masses of people would
read the same content, thus developing common cultural touchstones.
As Anderson (2006) notes, written content solidified national identity by
giving individuals a sense of belonging, in time and in space, to a common
community. Viewed through the prism of nationalism, Parliament’s passage of
the Statute of Anne, and thus the creation of the public domain, appears to be
social engineering. By ensuring that the law limited protection for works, the
common cultural heritage of England would become substantially cheaper over
time, thereby widely spreading the markers of English culture. As such, the
Statute of Anne balances two social needs. In this context, the public domain
balances the needs of authors with the need (desire) of leaders to ensure a
common mass identity.
In England by the end of the 1700s, ‘some booksellers were paying for the
right to copy and publish authors’ works’ (Bold 2010, p. 109). In a century and
a half, writers had been transformed from the Mediaeval role of craftsman to
‘original genius’, and the tradition of patronage was supplanted by a market
system of commodity exchange. What had been considered a communal activity
had become an individual one. The social role of writing changed with the
growth of mass market for literary work and the philosophical elevation of the
individual in Enlightenment philosophy. As literacy levels grew and a market
for vernacular works expanded, a parallel transformation occurred in legal

frameworks governing the book trade in England that reflected the manifold
changes in the literary and social role of the author. Concurrently, the spread of
knowledge became a social good that law would reflect.
Legal effects
From roughly the middle 1600s to the late 1700s, many changes occurred in
aesthetic values, the economics of printing, perceptions of private property and
thus the related legal regimes that sanctioned them. The history of the first
modern copyright statute, the 1710 Statute of Anne, and the court case that
solidified it in British law, Donaldson v. Beckett, is a well-trod territory, and we
do not need to cover it in depth here.8 Nevertheless, the shift from a
Mediaeval/Renaissance intellectual property regime to one that balances
author’s and the public’s interests is so pronounced it deserves clear
delineation.
Prior to the Statute of Anne, if you were John Milton or John Locke or
Alexander Pope, the content that you produced when published was the
property, protected by English law, of a ‘bookseller,’ analogous to today’s
publishing and distribution companies. They owned this ‘copyright’ perpetu-
ally; in other words, it never expired and anybody who wished to print an
edition of, for example, Shakespeare, needed the bookseller’s permission or
they would face legal sanction. There was a strong element of government
censorship in this process since, to be an official bookseller, meant you had to
register with the Stationers’ Company which was an official government
monopoly (Ochoa and Rose 2002).
What this meant in practice was, as Lessig (2005) observes, a system with
high prices caused by forced scarcity, profits going to the hands of people who
merely owned, rather than produced, content, and control of the types of
content that could be produced and its circulation to the public. It is important
to note that the ‘copyright’ at this time was not nearly as broad as it is today. It
was not the right of booksellers to change the work they owned, but the simple
right to print a copy; this did not stop people from performing Shakespeare.
However, only an officially sanctioned bookseller could actually own a copyright.
In this system, the works of English writers, from those who were quickly
forgotten to those who were mutually agreed to be the best were concentrated
in the hands of state-sanctioned elites, not authors and not the public.
When Parliament passed the Statute of Anne, it fundamentally changed the
way books, collections and poems were printed and sold in the British Isles. The
statute removed perpetual ownership from works and imposed a limit of 14
years with an additional 14 upon request for new works, and 21 years for any
work published before 1710. By limiting protection, Parliament ensured works
would eventually enter the public domain, and future authors would be
empowered to use those works without sanction. Thus, Parliament
acknowledged that cultural content, while a kind of property, was not of the
same type as land, which a person could own indefinitely. It also removed the
membership requirement for ownership of a copyright, from 1710 on the
original author of the work could own the rights that the booksellers had
formerly monopolized (Rose 1994, Ochoa 2003, Lessig 2005). Thus, the
passage of the Statute of Anne marks the transition between a perpetual
copyright regime centred on publisher’s interests and a time-limited regime
centred on authorial and public interests.
Parliament passed the statute to address the legal limbo prior to 1710
caused by the expiration of the Licensing Act in 1695. Motivated by a lack of
legal clarity, printers in Scotland and Ireland entered the book trade, and this
hurt the London-based monopoly’s profits (Lessig 2005). Having their
copyrights reaffirmed by Parliament would give the booksellers legal power
to crush their upstart competition. When the Statute of Anne was introduced, it
did not contain a limited-term provision (Ochoa and Rose 2002). Parliament,
on the other hand, was hostile to renewing perpetual copyright. The primary
reason for this was the role that monopoly had traditionally played in Britain.
During Elizabeth I’s reign (r. 1558-1603) monopolies for certain products,
inventions and trades had been used as a form of royal patronage. As Lessig
(2005) writes, in 1656 Parliament ‘fought back’ against the Crown and passed
the Statute of Monopolies, which limited the terms for patent protection of
inventions and was a broad forerunner for the Statute of Anne. The limited-
term provision also had strong proponents in the arts, among them Joseph
Addison and Daniel Defoe.
The view that what writers produced was theirs in the Lockean sense of
property developed into a major trope in the ensuing legal battles concerning
the Statute of Anne (Rose 1993, p. 41). As noted above, these types of
arguments were a new feature of discourse on literary property. Rose (1993,
p. 91) makes clear the significance these arguments had for literature and by
extension for cultural production: ‘What we observe here is the simultaneous
emergence in legal discourse of the proprietary author and the literary work’,
bound together they ‘imply the other … they define the center of the modern
literary system’. Nevertheless, Parliament’s desire to reign in monopolies and
improve the diffusion of knowledge was also salient. Thus, the statute balances
these seemingly competing interests in a sort of positive feedback loop, where
monetary incentives would motivate authors for a limited time and public
domain content could inspire future authors.
The legal case that finally settled the matter was Donaldson v. Beckett (1774)
argued before the House of Lords. That body voted by a margin of two-to-one
to maintain the Statute of Anne. Lessig describes the implications for English
culture: ‘Culture in England was thereafter free’, and could develop according
to the wishes of the English people not the choices of ‘the few despite the
wishes of the many’ (2005, p. 94, emphasis in original). In the Donaldson v.
Beckett ruling, the Lords legally codified the proprietary rights of individual
authors, removed the largest constraint to the free movement of culture and
information in their society and incentivized the publication of numerous works
considered crucial to the education of young men. Crucially, they also defined
for the first time, if only obliquely, the public domain in Anglo-American law.
It was this body of English law that inspired the first American intellectual
property regulations in the Copyright Clause of the Constitution and the
Copyright Act of 1790 (Ochoa 2003). While the statute made the author a
presumptive owner, and shifted the work into a realm of property relations
from which it had previously been absent, the law also established the basic
principle that cultural content plays an important social role. The limited time
provisions of both the Statute of Anne and the Copyright Act of 1790 were
meant to ensure that those works would not be permanently monopolized and
subject to property relations and that cultural content would eventually be
freely available for the good of society as a whole.
Towards an affirmative public domain
Concepts such as originality, authorship, monopoly, property, and the public

good have clearly played an important historical role in the establishment of
modern intellectual property laws and continue to be the terra cognita upon
which the content industries make their case for ever deeper legal protections
for the content they own. This is not a new problem. It has remarkable
historical continuity that reaches two-and-a-half to three centuries into the past
to the present day. Because of the continuity evident in the legal and cultural
discourses of copyright, property and authorship in an Anglo-American context,
we feel that a return to these core symbols can inform an affirmative version of
the public domain – one that adds discursive power to those with a sense of
unease caused by Neoliberalism’s commodification and monopolization of ever-
expanding amounts of culture, art and forms. The ruling in Golan, in this
context, is a radical abdication of the original intent of the Copyright Clause and
the public domain. In our view, an affirmative definition of the public domain
should contain the following features:
First, an affirmative definition should openly acknowledge the tenuous
nature of original authorship. Instead of artistic production being the sole
product of a given individual author, it is the product of an author, or a group of
authors, in a cultural, social and intellectual context that invariably exerted an
influence on process and on product. Whatever aspects of the author(s) that are
‘new’ in the final work, these are difficult, maybe impossible, to distinguish
from the overwhelming variety of sources the authors have been exposed to
over the course of their lives. Originality in this sense is a faculty exercised by
the author, but it does not occur in a fictive cultural vacuum. It is the creative
capacity we all possess and apply throughout our lives for a variety of creative,
political and financial reasons for which we all need the basic materials resident
in the public domain.
Second, even as we acknowledge the social need to provide authors a means
of making a living, the law should protect the public domain’s indispensable
role in a democratic society as a bulwark against the monopolization of informa-
tion and culture. In societies predicated on the importance of information and
cultural exchange9 without fear of government or of social reprisal, a well-
defined and defended public domain is not only a collective source of political
speech but also a constant reminder that a free society cannot exist if citizens are
blocked by powerful entities from exercising their basic right to express
themselves. In Justice Stephen Breyer’s dissent he argued, ‘By removing mater-
ial from the public domain, the statute, in literal terms, “abridges” a preexisting
freedom to speak’ (Golan v. Holder 2012, p. 907). We agree with this premise;
when the means and resources by which people can express themselves are
threatened, people become less likely to speak in the first place. The public
domain is a tool to encourage such communication.
Third, and perhaps most importantly, the public domain is not the ‘absence
of ownership’, it is the collective ownership of works by a given society
following the limited privilege granted by law to the author. Acknowledging
that authors do not create in a vacuum and the role of the public domain in
fostering future creativity and the democratic exchange of ideas requires that
the people have a collective right to access the public domain. In contrast to
Justice Ginsburg’s view expressed in Golan, we feel that a commons of intangible
goods faces none of the hazards of overuse expressed by Valenti or other
spokespeople for the content industries. The public domain does not require a
manager in the sense that public land might; the whole of society is capable of
expressing an ownership interest without causing harm to other citizens or
further content production.
Considering these characteristics our definition for an affirmative public
domain is as follows. The public domain is the collectively owned and accessible
space where creative works, after a limited period of monopoly protection, are
situated. Neither former owners, corporate or individual, nor government can
control the uses to which public domain works are put. Because ownership of
the public domain and its contents are defined as collective, any citizen may
challenge any attempt by government, corporation or another citizen to limit
access to its contents. Finally, as an expression of the collective nature of artistic
production, common history and political expression, the public domain
represents the need for a democratic society to protect the public’s right to use
past expression to enable future expression.
There are undoubtedly some aspects of the current intellectual property
landscape our definition does not address. Our terminology is ensconced in
Western, specifically American and British, terminology and ideas, and we take
little account of how our definition would interact with non-Western modes of
artistic production and information diffusion. In our defence, we simply say that
the international frameworks that compelled Golan in the first place are
themselves Western, and our research is an attempt to shine a light on the very
specific aspects of intellectual property law’s history such treaties use to justify
themselves. Further, we have consciously limited ourselves to the binary of
copyright and the public domain rather than analyse the myriad legal defences
that permit the use of copyrighted material. Surely, the fair use doctrine
(Copyright Act of 1976 1976) in US law that protects parody, education and
critique is important. But fair use does not question the norms of private
ownership in intangible intellectual property. Our goal has been to remind
scholars that the public domain has played, and should continue to play a vital
role in securing for society the basic material by which new works are created.
Conclusion
Today, court decisions such as Golan, international treaties such as the Trade-
Related Aspects of Intellectual Property Rights (TRIPs), and legislation such as
the Stop Online Piracy Act (SOPA) and Protect International Property Act
(PIPA) threaten to bring larger portions of cultural and intellectual content
under the control of a property regime that does not – and is potentially
incapable – of understanding the inherent contradiction of absolute property
rights in intangible goods. The relative stability of the copyright/public domain
regime is under tremendous pressure from large corporate entities, and their
allies in governments around the world, who have the most to gain from
expanded authorial rights and a weakened public domain. There is nothing
natural about these shifts in the law; they are simply the newest episode in a
long running debate within Western society.
On a certain level, it is remarkable to think that these issues are not new,
not the result of our superior technology to copy artistic content and transmit
it. While technological changes alter the contours of the debate, they have not
changed the core issues at stake. What rulings like Golan demonstrate is the
continuing danger in the monopolization of information that the drafters of
the Statute of Anne and framers of the Constitution saw as threatening to the
general progress of their societies. What the work of the scholars discussed
herein demonstrates is the constructed nature of the intellectual property
regime being codified in statutes around the world. Protecting the rights of
citizens to access and use their culture is a continuing struggle to which cultural
studies and legal studies can fruitfully and usefully contribute.
Notes
1 For references to Golan the authors have used SCOTUS blog, an excellent
resource that includes the various briefs, arguments, previous cases and
commentary from legal scholars and experts. For the purposes of approach-
ability our focus is on the SCOTUS ruling rather than the various legal
wranglings that previously occurred. If you are interested, this is the web
address where you can find the resources we used: http://www.scotusblog.
com/case-files/cases/golan-v-holder/?wpmp_switcher = desktop
2 Elena Kagan, who had worked on the case as a former Solicitor General,
recused herself.
3 Kelts’ (2007, p. 112) book contains numerous stories about Japanese cultural
products and the relationship between their creation and financial remunera-
tion. For example, he recounts the story of Toru Iwatani, the creator of Pac-
Man. In Iwatani’s words, ‘I want to emphasize that I received no particular
bonus for inventing that game. People think I made a fortune and that I’m a
rich man. I’m not’.
4 Here we should make a distinction. If you have a physical book, and it is taken
from you that is theft. But what was taken is not the content or ideas of the
book but the physical instantiation of those ideas. What you learned from the
book, how it made you feel, that cannot be taken.
5 It should be noted that monopoly in this context is not something that derives
from market competition, fair or unfair, but from the power of the English
monarch to remove competition for a favoured family in a particular trade or
industry. Monopolies were viewed as exclusionary to a competitive market
that would lower prices for the majority.
6 Recall Pac-Man creator Iwatani and his emphasis on his lack of personal
wealth. The reason the story is so interesting, and why Kelts reports it, is that
it goes against the grain of our normative expectations of the role of an author.
7 Woodmansee’s work cites several examples of Mediaeval thinkers to support
her assertions. So does Mark Rose (1993, 1994) whose work we examine in
some detail. We address more specific historical figures when discussing the
legal debates surrounding copyright during the 1700s.
8 Many of the sources used in this essay cover this history and we recommend in
particular Rose’s Authors and Owners. In addition, Cultural Studies ran a special
issue on intellectual property in 2006, vol. 20 iss. 2/3.
9 This concept was memorably termed the ‘marketplace of ideas’ (Schenk v.
United States 1919) by Justice Oliver Wendell Holmes in the early twentieth
century. While the connection of political debate to market relations may be
bothersome this should not distract from the First Amendment’s core purpose.
In Holmes’ view no matter how noxious expression was the government
should always remain cautious of prohibiting it. For Holmes, citizens did not
need their own government to protect them for something such as an opinion,
they were capable of countering bad speech with good speech.
Notes on Contributors
Gregory C. Lisby is Professor of Communication at Georgia State University.

He holds a Ph.D. from the University of Tennessee and a J.D. degree from the
GSU College of Law. Professor Lisby currently teaches Communication Law,
Regulation and Policy and, also, practices Elder Law in Atlanta. He serves on
the editorial boards of Communication Law & Policy, Newspaper Research Journal,
The Online Journal of Communication & Media Technologies and Studies in Media &
Information Literacy Education and is a past editorial board member of American
Journalism and past head of the AEJMC Law & Policy Division. He is the author
of two books, and his legal research has been published in Journalism Monographs,
Communication Law & Policy, Journalism Quarterly, Journal of Communication Inquiry,
Communication and the Law, Free Speech Yearbook, Newspaper Research Journal and
Georgia Historical Quarterly from which he received the E. Merton Coulter
Award for his legal history of the Georgia Literature Commission. His
documentary on film censorship in Atlanta has been broadcast on Georgia
public television and his biography of Pulitzer Prize-winning Georgia journalist
Julian Harris won the Book of the Year Award from the American Journalism
Historians Association in 2003.
Christopher M. Toula has an MA in Media Studies from Penn State and a BA

with honours in Film Studies, Video Production and Creative Writing from
Bucks New University. He is currently a Ph.D. candidate in the Department of
Communication at Georgia State University. Mr. Toula currently teaches
Communication Law, Public Speaking, Media Research Methods and Media
Writing at Georgia State. His research areas include the following: critical
globalization theory, political and economic rhetoric, law and international
communication. He has given 11 conference presentations since 2008.
References
Anderson, B. (2006) Imagined Communities: Reflections on the Origin and Spread of
Nationalism, 3rd edn, London, Verso Books.
Aufderheide, P. & Jaszi, P. (2011) Reclaiming Fair Use: How to Put Balance Back in
Copyright, Chicago, University of Chicago Press.
Barthes, R. (1978) Image-Music-Text, New York, Hill and Wang.
Benckler, Y. (1999) ‘Free as the air to common use: First Amendment constraints
on enclosure of the public domain’, New York University Law Review, vol. 74,
pp. 354–412.
Boateng, B. (2011) The Copyright Thing Doesn’t Work Here: Adinkra and Kente Cloth
and Intellectual Property in Ghana, Minneapolis, University Of Minnesota Press.
Bold, M. R. (2010) ‘No man but a blockhead ever wrote, except for money:
copyright and the profession of author’, International Journal of the Book,
vol. 7, pp. 107–117.
Boyd, J. (ed). (1956) The Papers of Thomas Jefferson, Princeton, NJ, Princeton
University Press.
Boyle, J. (2008) The Public Domain: Enclosing the Commons of the Mind, New Haven,
CT, Yale University Press.
Burk, K. (2009) ‘Old world, new world: Great Britain and America from the
beginning’, in America’s “Special Relationships”: Foreign and Domestic Aspects of the
Politics of Alliance, ed. J. Dumbrell & A. R. Schafer, Abingdon, Taylor &
Francis, pp. 24–44.
Chang, H. J. (2008) Bad Samaritans: The Myth of Free Trade and the Secret History of
Capitalism, Reprint edn, New York, Bloomsbury Press.
Coombe, R. J. (1998) The Cultural Life of Intellectual Properties: Authorship,
Appropriation, and the Law, Durham, NC, Duke University Press.
Coombe, R. J. & Herman, A. (2004) ‘Rhetorical virtues: property, speech, and
the commons on the world-wide web’, Anthropological Quarterly, vol. 77,
pp. 559–574.
Copyright Act of 1976., 17 U.S.C. 107 (1976).
Denniston, L. (2012) ‘Opinion Recap: The Public Domain Shrinks, [WWW
document]’, SCOTUSblog. Available at: http://www.scotusblog.com/2012/
01/opinion-recap-the-public-domain-shrinks/ (accessed 12 November 2012).
Donaldson v. Beckett, 1774., 1 Eng. Rep. 837 (1774).
Eldred v. Ashcroft, 2003., 537 U.S. Reports 186 (2003).
Feist Publications, Inc. v. Rural Telephone Service, 1991., 499 U.S. Reports 340 (1991).
Foucault, M. (1984) The Foucault Reader, New York, Pantheon.
Frank, T. (2000) One Market under God: Extreme Capitalism, Market Populism, and the
End of Economic Democracy, New York, Random House Digital, Inc.
Giroux, H. A. (2004a) The Terror of Neoliberalism: Authoritarianism and the Eclipse of
Democracy, Aurora, Paradigm Publishers.
Giroux, H. A. (2004b) Take Back Higher Education: Race, Youth, and the Crisis of
Democracy in the Post-Civil Rights Era, 1st edn, New York, Palgrave Macmillan.
Golan v. Holder, 2010., 609 F. 3d 1076 (2010).
Golan v. Holder, 2012., 132 S. Ct. 873 (2012).
Hamelink, C. J. (2004) ‘Intellectual property rights’, in Who Owns the Media? Global
Trends and Local Resistance, eds. P. N. Thomas & Z. Nain, London, Zed
Books, pp. 43–48.
Harold, C. (2004) ‘Pranking rhetoric: “culture jamming” as media activism’,
Critical Studies in Media Communication, vol. 21, pp. 189–211.
Harvey, D. (2007) A Brief History of Neoliberalism, Oxford, Oxford University Press.
Hemmungs Wirtén, E. (2006) ‘Out of sight and out of mind’, Cultural Studies,
vol. 20, pp. 282–291.
Hirtle, P. B. (2008) ‘Copyright renewal, copyright restoration, and the difficulty of
determining copyright status’, D-Lib Magazine, p. 14.
International News Service v. Associated Press, 1918., 248 U.S. Reports 215 (1918).
Katyal, S. K. (2006) ‘Semiotic disobedience’, Washington University Law Review,
vol. 84, pp. 489–571.
Kawai, Y. (2009) ‘Neoliberalism, nationalism, and intercultural communication: a
critical analysis of a Japan’s neoliberal nationalism discourse under globaliza-
tion’, Journal of International & Intercultural Communication, vol. 2, pp. 16–43.
Kelts, R. (2007) Japanamerica: How Japanese Pop Culture Has Invaded the U.S., 1st
edn, Basingstoke, Palgrave Macmillan.
Lessig, L. (2005) Free Culture: The Nature and Future of Creativity, New York,
Penguin Books.
Liptak, A. (2011) ‘Restoring copyright to public domain works’, The New York
Times, p. A16.
Litman, J. (1990) ‘The public domain’, Emory Law Journal, vol. 39, pp. 965–1023.
Macaulay, T. B. (1897) The Life and Works of Lord Macaulay: Complete in Ten Volumes,
Edinburgh, Longman.
McLeod, K. (2001) Owning Culture: Authorship, Ownership, and Intellectual Property
Law, Popular Culture & Everyday Life, New York, P. Lang.
Morley, E. J. (ed.). (1918). Edward Young’s Conjectures on Original Composition,
Modern Language Texts, Manchester, Manchester University Press.
Ochoa, T. T. (2003) ‘Origins and meanings of the public domain’, University of
Dayton Law Review, vol. 28, pp. 215–267.
Ochoa, T. T. & Rose, M. (2002) ‘The anti-monopoly origins of the patent and
copyright clause’, Journal of the Patent and Trademark Office Society, vol. 84,
pp. 909–1023.
Parry, M. (2011) ‘Supreme court takes up scholars’ rights, [WWW document]’,
The Chronicle of Higher Education. Available at: http://chronicle.com/article/
A-Professors-Fight-Over/127700/ (accessed 12 November 2012).
Prasad, M. (2006) The Politics of Free Markets: The Rise of Neoliberal Economic Policies in
Britain, France, Germany, and the United States, Chicago, University of Chicago
Press.
Rose, M. (1993) Authors and Owners: The Invention of Copyright, Cambridge, MA,
Harvard University Press.
Rose, M. (1994) ‘The author as proprietor’, in Of Authors and Origins: Essays on
Copyright Law, ed. B. Sherman & A. Strowel, Oxford, Clarendon Press,
pp. 23–55.
Schenk v. United States, 1919., 249 U.S. Reports (1919).
Steger, M. B. (2002) Globalism: The New Market Ideology, London, Rowman &
Littlefield.
Stiglitz, J. E. (2003) Globalization and Its Discontents, 1st edn, New York, W. W. Norton.
Tyfield, D. (2010) ‘Neoliberalism, intellectual property and the global knowledge

economy’, in The Rise and Fall of Neoliberalism: The Collapse of an Economic
Order? eds. K. Birch & V. Mykhnenko, New York, Zed Books, pp. 60–76.
Uruguay Round Agreements Act, 1994., 17 U.S.C. 104A (1994).
Woodmansee, M. (1984) ‘The genius and the copyright: economic and legal
conditions of the emergence of the “author”’, Eighteenth-Century Studies,
vol. 17, pp. 425–448.
Woodmansee, M. (1994) ‘The author effect I’, in The Construction of Authorship:
Textual Appropriation in Law and Literature, eds. M. Woodmansee & P. Jaszi,
Durham, London, Duke University Press, pp. 15–28.

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Christopher M. Toula and

TOWARDS AN AFFIRMATIVE PUBLIC

Keywords copyright; intellectual property; public domain; fair use;

At present, there is a broad movement conducted on the part of the cultural

Court’s outright rejection of society’s interests in the public domain. Its

On 18 January 2012, the Supreme Court of the United States (SCOTUS)

would be entitled to interminable copyright protection, with no concern for the

and thinkers to defend the collective aspects of cultural production. Finally, we

The public domain

the creative repurposing of a work still under copyright is tolerated.3

The opposite of property

Public domain and creative production

Public domain and anti-monopoly

Origins of intellectual property

these intellectual, economic, philosophical and legal trends are somehow

The pre-enlightenment/romantic author

Aesthetics, originality, and property

warranted before examining these effects on the laws of eighteenth century

The market of readables

for vernacular works expanded, a parallel transformation occurred in legal

Towards an affirmative public domain

Concepts such as originality, authorship, monopoly, property, and the public

Gregory C. Lisby is Professor of Communication at Georgia State University.

Christopher M. Toula has an MA in Media Studies from Penn State and a BA

Tyfield, D. (2010) ‘Neoliberalism, intellectual property and the global knowledge

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