The Many Faces of the Public Domain
Edited by Charlotte Waelde and Hector MacQueen
Chapter 6: Altering the Contours of the Public Domain
Fiona Macmillan 1 Introduction As this volume so eloquently demonstrates, intellectual property scholarship has become deeply involved in a discourse about the relationship of intellectual property with the public domain. This has been an important debate driven by serious concerns about the imperialistic tendencies of intellectual property, as it extends its boundaries horizontally to include new types of intellectual activity and vertically to confer wider powers of control on the relevant right-holders. The frequent tendency of the debate is to create some sort of binary opposition, so that we divide the whole of intellectual space between that which is propertised and that which is in the public domain. It is not just that the public domain is other than intellectual property and vice versa, but that the two are envisaged as butting up against one another so that, if we were to conceive of this in physical terms, each would fit snugly against the shape of the other. The implication of this is that, if the two also take up the whole of intellectual space, altering the contours of intellectual property will alter those of the public domain (and vice versa). Of course, the dangers of analogies between intellectual property and physical property are considerable. It is not unknown for advocates of strong intellectual property rights to draw comparisons between the theft of physical property and that of intellectual property, nor is it uncommon to encounter the use of emotive metaphors that have somehow abandoned their metaphorical nature and acquired...
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