Boyle - The Public Domain Exzerpt

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Allgemeine Anmerkungen

• Während das Buch sowohl Patent- als auch Urheberrecht behandelt, hat es einen sehr starken US-Fokus und klammert die internationale Dimension fast völlig aus. Dies gilt insbesondere für die Diskussion des DMCA und die entsprechenden Auseinandersetzungen, die in keinster Weise die vorhergehenden Weichenstellungen auf internationaler Ebene berücksichtigen
• Über weite Strecken argumentiert Boyle mit Jefferson und bezieht sich generell sehr stark auf die US Constitution
• Interessant ist der Ansatz, die Verschärfung von IP auf den dominanten Frame der "Internet Threat" zurückzuführen.
• Drei Fallstudien:
  • Kapitel 6 versucht die Geschichte eines Songs (Ray Charles "I got a women" / Kanye Wests "Gold Digger" / Legendary K.O.s "Bush doesn't like Black People") nachzuvollziehen; spannender Gedanke dabei: auch urheberrechtlich geschützte Melodien lassen sich dann ohne urheberrechtsverletzung "kopieren", wenn sich nachweisen lässt, dass sie ebenfalls auf früheren, bereits gemeinfreien Werken beruhen.
  • Softwarepatente und Copyright
  • Biotechnologie

Exzerpt

• "The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable." (p. 9; Anm.: es geht um das Material im Library of Congress catalouge)
• "For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a-million perennial favorite." (p. 11)
• "Even if natural right does create the ground for the property claim, it is "social law" that shapes its contours and guarantees its stability." (p. 28)
• "Even within the droits d'auteur tradition, we see a recognition that the continuing progress of enlightenment and the sacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects." (p. 34; Herv. i. Orig; Fett L.D.)
• "From the early days of intellectual property as we know it now, the main objection raised against it were framed in the language of free trade and "ant-monopoly." (p 36)
• "Look at the structure of these comments; they are framed as criticisms of intellectual property rather than defenses of the public domain or the commons, terms that simply do not appear in the debates. There is no real discussion of the world of intellectual property’s outside, its opposite. Most of these critics take as their goal the prevention or limitation of an “artificial” monopoly; without this monopoly our goal is to have a world of—what? The assumption is that we will return to a norm of freedom, but of what kind? Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? The eighteenth and nineteenth-century critics brushed over these points; but to be fair, we continue to do so today. The opposite of property, or perhaps we should say the opposites of property, are much more obscure to us than property itself. For the most part, the antimonopolist view of intellectual property makes a simple case. Monopolies are bad. Have as few as possible and make them as narrow and as short as possible. This is a fine principle, but it falls short of an affirmative explanation and defense of the role of the public domain or the commons in enabling creativity, culture, and science. That is a shame because just as intellectual property is different from tangible property, so too is its opposite, its outside. What are those opposites? The two major terms in use are “the public domain” and “the commons.” Both are used in multiple ways—probably a good thing. The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patent over powered flight are examples. Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive. (...) In the granular view, the map is more complex. (...) In popular discussion, we tend to use the absolutist view of both property and the public domain. (...) The term “commons” is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. It is used in even more ways than the term “public domain.” The first axis along which definitions of the term “commons” vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here. The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others. I will discuss this type of commons in Chapter 8. So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works. Why is it so important? Let us start with the dry reasons. (pp. 38-39; Herv. L.D.)
• "When we commodify too much we actually undermine creativity, since we are raising the price of the inputs for future creations. (...) Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture. Or at least it has been." (p. 40-41, Herv. i. Orig.)
• "Like most criticisms of the enclosure movement, the poem depicts a world of rapacious, state-aided "privatization", a conversion into private property of something that had formerly been common property or perhaps had been outside the property system altogether." (p. 43; Herv. L.D.)
• "This faith in enclosure is rooted in a correspondingly deep pessimism about the possibility of managing resources that are either commonly owned or owned by no one. (...) To say that some social resource is not owned by an individual, that it is free as the air to common use, is automatically to conjure up the idea that it is being wasted." (p. 47, Herv. i. Orig.)
• "More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation - sometimes just the opposite is true. (...) Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as "the tragedy of the anticommons." (...) The baseline - intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain - is still supposed to be our starting point. It is, however, under attack." (p. 48-49)

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