Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Cahir, John --- "The Public Domain: Right or Liberty?" [2007] ELECD 151; in Waelde, Charlotte; MacQueen, Hector (eds), "Intellectual Property" (Edward Elgar Publishing, 2007)

Book Title: Intellectual Property

Editor(s): Waelde, Charlotte; MacQueen, Hector

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845428747

Section: Chapter 3

Section Title: The Public Domain: Right or Liberty?

Author(s): Cahir, John

Number of pages: 18

Extract:

3. The public domain: right or liberty?
John Cahir

1 INTRODUCTION
The `public domain' has become a totemic object for those who oppose the ap-
plication 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 individu-
als by copyright law.
Although the current controversy has many facets, one issue in need of clari-
fication 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 im-
portant 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 applica-
tion 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 ` ...