Constitutionalizing the Public Domain
"Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5-6 (Sup. Ct., 1966).
In the United States, recent expansions in intellectual property have raised the stakes on a series of constitutional questions about the limits of legislative power to create property rights over expression and invention. Does the First Amendment impose limits on the extent of intellectual property rights? Does the “intellectual property clause” of the United States constitution, which gives Congress its power “to promote the progress of science and useful arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries,” also impose limits on the extent of those rights? In brief, these provisions raise the question, to what extent is the public domain constitutionally protected?
Under the auspices of the CSPD, a number of projects are being pursued to provide perspectives on that question.
- Academic Panels and Papers: The Duke Conference on the Public Domain brought together leading constitutionalists to debate the “constitutionalizing of the public domain.” Yochai Benkler, William Van Alystne, H. Jefferson Powell, Jed Rubenfeld and Lawrence Lessig conducted a fascinating debate on the issue. You can view the debate here or read Professor Benkler’s and Professor Van Alstyne’s papers.
- Books and Monographs: David Lange, Melvin G. Shimm Professor of Law and Faculty Co-Director of the Center, and H. Jefferson Powell, Frederic Cleaveland Professor of Law and Divinity at Duke Law School, recently published a book entitled No Law: Intellectual Property in the Absolute Image of the First Amendment (Stanford University Press). This book treats its subject from two simultaneous perspectives: one proposes to reform intellectual property in the image of an absolute First Amendment, and the other proposes to reform the First Amendment into an absolute doctrine rather than a mediated, balanced, multi-step standard of protection.
- Amicus Curiae briefs: Amicus briefs bring scholarly analysis to bear on neglected issues in constitutional litigation. An example of such a brief, researched and drafted by Duke Law School Professors David Lange and H. Jefferson Powell, Public Domain Fellow Daphne Keller, and Duke Law students can be found here.