‘Dedicating’ Copyright to the Public Domain

DOIhttp://doi.org/10.1111/j.1468-2230.2008.00707.x
Publication Date01 Jul 2008
AuthorPhillip Johnson
‘Dedicating’Copyright to the Public Domain
Phillip Johnson
n
This article explores whether authors can dedicate their copyright to the public domain. Such
dedications are becoming increasingly relevant as authors now see the expansion of the public
domain as value in itself. This is facilitated by organisations providing pro forma documents for
dedicating works to the public domain. However, there has been no real consideration of what,
if any, legal e¡ect a dedication to the public might have.This article suggests that such dedications
are no moretha ncopyright licences which, in English and US law atle ast,can be revoked at will.
This means that users of such worksmust rely on estoppel alone to enforce anydedication to the
public domain.
The imparting of knowledge and information is an incident of language.When
literary, and later other expression, beganto be governed by the rules of property
some authors did not wish to bene¢t from those rules and wanted their knowl-
edge and learning to spread as widely as possible. In recent years this has resulted
in formal attempts to dedicate copyright works to the public domain. Surpris-
ingly, however, nobody has considered the legal e¡ect of such a dedication and
whether or not it can be revoked to allow an author to exercise copyright once
more. Instead there has been an assumption th at legal rights can be given up.Yet as
the rumbling rhetoric of the public domain grows louder these basic issues need
to be explored.
THE PUBLIC DOMAIN
The public domain has existed as long as copyright itse lf.
1
Yet unti l recently it ha s
been a peripheralto copyright schola rship, it was ‘the oth er’that did not ne ed to b e
discussed as it fell outside the subject.The understanding of the public domain as
somethingof importance in itself beganwith an article by David Lange.
2
He was
concerned about the ex pansion of copyright into the publ ic domain ^ something
he described as ‘amorphous and vague
3
^ rather than the purpose of the public
domain itself. It was Jessica Litman
4
who attacked head-on the romantic viewof
the author as someone who creates something from nothing and who should be
n
Barrister, 7 New Square, Lincoln’s Inn;Visiting Senior Fellow, Queen Mary Intellectual Property
ResearchInstitute. The author wouldl iketo thank Johanna Gibson, Hector MacQueen and the anon-
ymous referees forthe ir helpfulcomments on earlier drafts of this article.
1 Although the use of the term began only in the nineteenth century: see J. Ginsburg,‘Une Chose
Publique?The Author’sDomain and the Public Domain in Early, British,French and US Copy-
right Law’ (2006) 65 CLJ 636. Some would argue that before copyright protection began
(and after licensing ceased) all works were in the public domain: see eg R. Deazley, Rethinking
Copyright (London: Edward Elgar, 2006) 108.
2 D. Lange,‘Recognizing the Public Domain’(1981) 44 Lawand Contemporary Problems147.
3ibid 177.
4 J. Litman,‘The Public Domain’ (1990) 39 Emory LJ965.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(4) 587^610
protected from the ‘greedy public’.
5
Instead, she argued that authors rely on the
knowledge and experience of their predecessors whose work is in the public
domain:
The public domain should be understood not as the realmof material that is unde-
serving of protection, but as a device that permits the restof the system to work by
leaving the raw material of authorship available for authors to use.
6
The understanding of the public domain has moved on considerably since those
¢rst tentative steps were taken, so much so that writing about the public domain
has become ‘all the rage’.
7
Notwithstanding the discussion of the publicdomain as
a concept there is some disagreement about its scope.Traditionally it was said to
include anything which could be protected by copyright, but is not protected:
works in which copyright has expired or which did not quali fy for protection.
There is now, however, an expansive view of what constitutes the public domain.
It is no longer the case that something is either in the public domain or not. It is
now said to include uses of works which do not require the author’s permission
(eg fair dealing with, or fair use of, awork).
8
For the purposes of this article this
expansive interpretation of thepublic domain will be disregarded. This is because
it is irrelevant to the question whether copyright can be dedicated to the publ ic
(and if so, revived), ratherthan because of concernswith the position itself. Never-
theless, what is important about th e debate is that the public domain has be en
attributed apositive value both economically
9
and culturally.
10
This debate has generated a belief that there is a normative value in increasing
the public domain. Primar ily, this has led to proposals that copyright protection
should be restricted, buti n addition it has prompted organisations into providing
free licences to authors and creators. These licences are intended to enable the
reuse, remixing and development of the au thors’ works and so to promote further
creativity. In addition to this licensing regime, Creative Commons (amongst
others) has gone further and provided pro-forma ‘Dedications to the Public’,
which purport to be a mechanismto permanently relinquish all rights in a parti-
cular work, so enabling authors to take positive steps to increase the publ ic
domain by simply ‘giving’their works to the public.
This article is only concerned with the legal e¡ect (if any) of such dedications. It is
not its purpose to contest the bene¢ts of avital and expanding public domain; indeed,
if authors have no desire to retain copyright it is di⁄cult to see why they should be
compelledtodoso.Itwilltrytoanswerasimplequestion:ifanauthordedicateshisor
her work to the public will copyright cease to exist under UK or US law?
5ibid 966.
6ibid 968.
7 According toGinsburg, n1 above636; for highlights, see ibid n 1 and C.Waelde and H. MacQueen,
The ManyFaces of the PublicDomain (London: Elgar, 2007).
8 Litman, n 4 above,976^977;for a critique see E. Samuels,‘The Public Domain in Copyright Law
(1993) Journalof Copyright Society137, 16 6.
9 W. Landes, ‘Copyright, Borrowed Images, and Appropriation Art: An Economic Approach
(2000) 9 George Mason LR1.
10 S e e eg L. L e s s i g, The Futureof Ideas:TheFateof the Commonsin a ConnectedWorld (NewYork: Random
House, 2001).
‘Dedicating’ Copyright to the Public Domain
588 r2008 The Author.Journal Compilation r20 08 The ModernLaw Review Limited.
(2008) 71(4) 587^610

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