Birnhack on Public Domain
Michael Birnhack posted an interesting article on SSRN (forthcoming in THE PUBLIC DOMAIN OF INFORMATION, P. Bernt Hugenholtz & Lucie Guibault, eds., Kluwer Law International, 2005): “More or Better? Shaping the Public Domain“. I’m particularly interested in the way he frames information quality issues in the context of free speech theories and copyright. Here’s the abstract:
Once we accept that the public domain is not only a negative, we need to figure out how we would like it to be constructed. In this article I would like to add my contribution to the construction of the public domain. In performing this task, we need not ignore the elaborate political thought about freedom of speech. The public domain and free speech are two sides of the same coin. Both notions aim at constructing a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle. In this sense, both are derivatives of a political notion, which is a particular conception of democracy. Accordingly, it is useful to learn from the lessons of the free speech-copyright conflict in our task of constructing the public domain, within copyright law.
What kind of public domain are we interested in? I apply the notions of quality and quantity. These are fuzzy terms. At best, we would like to have a combination of both: we would like to construct a public domain that has more information and more speech of better quality. The article explores how these fuzzy terms interact with various theoretical justifications of both free speech jurisprudence, and then with various theories of copyright law, and concludes with tying all the ends together – examining how we can better construct the public domain.
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