The Uncoordinated Public Domain

Journal article

45 pages

0736-7694

When nations amend their copyright laws in response to calls for international harmonization, they usually expand authors’ rights without also seeking to harmonize national public domains. Divergent national copyright laws have resulted in an uncoordinated global public domain that renders authors’ works freely available for use in some countries while subjecting them to copyright or moral-rights protection in others. While the fragmented global commons thwarts many valuable uses of cultural resources, it has especially deleterious effects on the ability of researchers to access, copy, and disseminate historical and literary materials, many of which remain unpublished. These effects are mirrored and exacerbated by the inconsistent policies of cultural repositories that control access to millions of documents and images. The uncoordinated public domain shares certain features—notably, fragmented ownership and resource underuse—with an anticommons. This Article offers a theoretical framework for understanding the uncoordinated public domain, and illustrates the tragic inefficiencies of this patchwork commons by discussing its impact on a number of research and publishing projects involving modern authors—in particular, James Joyce. A balanced solution to the checkerboard effects of the commons would be to employ a treaty-based system of compulsory licenses to harmonize national public domains and to coordinate the legal conditions whereby the world’s vast informational resources could be globally disseminated by researchers and other users.

Published in : Cardozo Arts & Entertainment Law, vol. 35, no. 1

[New York City, New York] : Yeshiva University Benjamin N. Cardozo School of Law, 2017.

English