Property Rhetoric and the Public Domain

By David Fagundes. Full text here.

Those who prefer broad intellectual property rights often deploy the rhetoric of physical property. By contrast, those who are concerned about maintaining public entitlements in information resist that rhetoric. In this Article, I take this dichotomy as a starting point for investigating the power of property rhetoric as a tool in public debate about the optimal scope of intellectual property rights. I first observe that this dichotomy is premised on a limited view of property as referring only to nearly absolute private rights in owned objects. I then critique this prevailing assumption, showing that it fails to account for an alternative, social discourse of property that emphasizes both the limits on, and communal aspects of, ownership. Finally, I suggest a novel approach to the use of physical property rhetoric in debates about the ideal scope of patent and copyright. I argue that rather than resisting the invocation of property rhetoric, enthusiasts of the public domain should embrace it. Specifically, the public domain should be explicitly portrayed as a form of property, one in which we all enjoy a broad entitlement. This approach would encourage respect for and stewardship of the public domain and would also provide needed pushback against content industries’ expansive intimations that all takings of information are wrongful.