The Many Faces of the Public Domain
Edited by Charlotte Waelde and Hector MacQueen
Chapter 3: The Public Domain: Right or Liberty?
3. The public domain: right or liberty? John Cahir 1 Introduction The ‘public domain’ has become a totemic object for those who oppose the application of property rights to informational objects, particularly in the Internet environment. Persons who object to the expansion of copyright law maintain that there exists a public domain of information and ideas that both is not and should not be within the realm of private property. Recalling the political fault lines of the 19th and 20th centuries, exponents of this viewpoint identify (and exalt) general rights and interests of the public in the hope that in so doing they will ultimately achieve a diminution in the private rights conferred on individuals by copyright law. Although the current controversy has many facets, one issue in need of clarification is whether it is, legally speaking, correct to claim that persons have ‘rights’ to the public domain. The language of rights is so central to modern political and judicial discourse that to be recognised as a true ‘right’ is an important victory in itself. Moreover, if the public at large can be said to have vested rights in the public domain, arguments in favour of limiting the application of digital rights management (DRM) technology and/or circumscribing the exercise of private contracting powers that have the effect of limiting the public domain are considerably strengthened. The aim of this chapter therefore is to ascertain whether, under the common law system of copyright, there exist ‘rights’ to the public domain. All...
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