A striking paper from SSRN: Copyright, Commodification, and Culture: Locating the Public Domain by Julie Cohen. This paper challenges the current conceptions of the notion of the “public domain,” suggesting that the way that it is currently framed (in the Lakoff sense) ends up supporting efforts to commodify cultural products. A fascinating and challenging read. I really liked this paragraph from p. 38:
At bottom, however, my argument is a normative one. As David Lange and Eben Moglen have so eloquently argued, access to the cultural public domain is a matter of status, not of property. Commodification of artistic culture places the law in opposition to the inherent creative faculties and tendencies that define what it is to be human and to exist in human society. This devalues what we purport to prize. If we as a society really wish to encourage creative practice, there is something perverse about adopting a legal regime that throws up omnipresent roadblocks to it. Instead, we need to decide which legal definition of the cultural public domain will produce the best set of conditions for creative practice generally. Although there are inherent tensions between a regime of ownership and conventions of opportunistic borrowing, copyright law should align with creative practice to a far greater degree than it currently does.
And the conclusion will, I hope, give you reason to read her proposal for a construction of a “cultural landscape” in full:
Beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a “public domain” is. I have argued that the term “public domain” is burdened with associations more broadly congruent with the pro-commodificationist project than is commonly acknowledged. More fundamentally, I have argued that the right approach to the relationship between the proprietary and the public in copyright law is not to be derived by interrogating nineteenth-century legal concepts, nor by studying markets for creative products or modeling information as an autonomous system, but rather by more careful attention to creativity as a social phenomenon manifested through creative practice. The preliminary outline of a social theory of creativity offered here has emphasized the relational, emergent nature of creative practice. Much work remains to be done in understanding and elaborating the creative process. It seems, however, that the public domain may require not so much a reification as a reformulation. Experientially, the common in culture is distributed and disaggregated. It is neither geographically nor formally separate, nor is it composed only of that which is publicly owned. If so, the legally constituted common should both mirror and express this disaggregation. The cultural landscape is a likely candidate for both jobs.