History and Theory
The CSPD is particularly concerned with the history and theory of the public domain and of the commons, from early discussions of the importance of limiting intellectual property rights, to contemporary interdisciplinary literature on the operation of common property regimes — ranging from environmental policy over the management of atmosphere or fisheries, to analysis of the free software and open source software movements. Listed below is some of our work on the subject.
Recognizing the Public Domain: The CSPD builds on Duke Law School’s unique and influential role in studying the public domain. In 1981, CSPD Faculty Co-Director David Lange’s pioneering article Recognizing the Public Domain, 44 Law & Contemp. Probs. 147 (1981), urged that the public domain receive affirmative recognition as an independent doctrinal field within intellectual property law, and proposed principles and presumptions meant to insure that independent status both in litigation and in the legislative arena. Often acknowledged as a classic work in its own right, Lange’s article is widely credited today with having prompted a more extensive contemporary legal study of the public domain. Twenty years later, Professor Lange has revisited the subject with a second classic article, Reimagining the Public Domain, published in the Symposium of papers from the CSPD’s conference on the same subject.
Theorizing the Research Commons in Science: Faculty Co-Director Jerome Reichman has, over the years, produced an extremely influential set of studies on the role of the research commons in science and innovation. His most recent article, co-authored with Paul Uhlir of the National Academies, is A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment, 66 Law & Contemp. Probs. 315 (Winter/Spring 2003).
The History of the Public Domain and the Commons: At the Duke Conference on the Public Domain, CSPD faculty organized a panel on this theme which elicited the following two remarkable papers. Mark Rose, one of the foremost literary historians of copyright, turned his attention to the other side of the picture. His essay Nine Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain provides a pre-history of the “outside” of literary property: as Rose puts it “copyright and the public domain were born together.” Carol Rose, the eminent property theorist, goes further back in time to discuss the Roman categories of common property and to see how they illuminate contemporary debates about intellectual property. Her article is entitled Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age. Other CSPD-sponsored papers on this subject include The Opposite of Property and The Second Enclosure Movement and the Construction of the Public Domain.