The Public Domain: Enclosing the Commons of the Mind (review)

“Can one build a politics to protect a residue?” James Boyle asks toward the end of this lively account of recent attempts to foreclose the public domain. The Duke University law professor was among the first to sound the alarm about intellectual property in the 1990s, and The Public Domain offers a lucid case for maintaining a commons of culture, technology, and information. The residue, Boyle suggests, is what remains of free culture after a long period when American politics lacked strong, concerted voices to defend the right to copy and share information. The assumption that more and stronger property rights are always beneficial for the economy has left the public domain impoverished and, in some areas (such as sound recording), virtually nonexistent (pp. 40, 239).

One should not expect to find a great deal here that is new to the literature on intellectual property, as The Public Domain synthesizes the work of legal thinkers and historians such as Siva Vaidhyanathan, Yochai Benkler, and Boyle himself. The volume’s greatest contribution is not so much in advancing a novel legal argument or revealing an unknown chapter in the history of culture and technology; rather, its unique strength lies in providing metaphors and historical allusions that elegantly capture the dilemmas of intellectual property, explaining why excessive deference to claims of property rights is neither necessary nor beneficial. For example, Boyle posits that the “public domain” is much like the concept of “the environment,” expanding on a thesis first advanced in a seminal 1997 Duke Law Journal review essay. In the 1950s and 1960s, environmentalists had to lay out a vision that helped the public see how seemingly isolated problems (pollution, endangered species, suburban sprawl) were part of a greater, previously unrecognized system. Similarly, Boyle suggests we must learn to see the public domain as a common sphere—one that affects the teachers who are sued for violating fair use, the patient whose genes are patented by university researchers, and the artists whose work is limited by the chilling effect of possible litigation. Without this intellectual leap, an adequate political response is unlikely to take shape.

In another perceptive analogy, The Public Domain likens contemporary intellectual property law to England’s enclosure movement, the historic privatization of common lands that began in the fifteenth century and dispossessed so many traditional agricultural tenants. Boyle describes the expansion of intellectual property as a similar kind of “land grab,” as corporations seek to convert all kinds of expression, even facts themselves, from public resources into private ones (p. xv). The author challenges assumptions about the greater efficiency of private ownership by showing how society balances land tenure between public and private hands to maximize communal well being. Public roads and beaches, for instance, are “braided” or “quilted” with privately owned land, and the public provision of such goods often makes neighboring private plots more valuable (pp. 50, 269). In this way, the public domain supports private ownership, furnishing the raw material from which creators can make new works and, for a time, own them. “It may seem paradoxical,” Boyle writes, “but in a very real sense protection of the commons was one of the fundamental goals of intellectual property law” (p. 50). The author finds a convincing empirical example in the database industry, which has prospered in the United States without the copyright protections found in the European Union (p. 213).

The book’s shortcomings are few. It may oversimplify by implying that piracy was nearly unknown in an earlier era when technologies of reproduction were less advanced. In fact, pirates used the tools that were available, however limited, to circulate unlicensed copies of sheet music, recordings, and other media in the late nineteenth and early twentieth centuries, without triggering the massive legal retaliation or ideological shift we have seen in recent decades. And while Boyle is no anti-copyright firebrand, he may too readily dismiss the possibility that new interests (Google comes to mind...