Copyright, Commodification, Culture & Cohen

Last summer the Institute for Information Law held a conference in Amsterdam with parallel sessions on Code and on Commodification. I was involved with the first, and although Eben Moglen's rebuttal to my presenation provided the (expected) vocal fireworks, the real turmoil was at the Commodification session. Or so I heard. Either way, the first paper to be published that provided fertile ground for the Commodification discussion then, and now, is Julie E. Cohen's Copyright, Commodification, and Culture: Locating the Public Domain (SSRN).

Here's the abstract:

The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a "public domain" is. When considered in broader historical context, the term "public domain" has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presumptively eligible for privatization. This idea meshes well with the current push toward commodification in copyright. The paper then tests this metaphorical construct of the public domain against descriptive and theoretical accounts of the ways that forms of artistic expression develop, and argues that the metaphor in fact describes the public aspects of artistic, intellectual, and informational culture rather badly. Attention to the social parameters of creative practice suggests that the common in culture is not a separate place, but a distributed property of social space. The legally constituted common should both mirror and express this disaggregation. The paper offers a different organizing metaphor for the relationship between the public and the proprietary that matches the theory and practice of creativity more accurately: The common in culture is the cultural landscape within which creative practice takes place. This in turn suggests a need to recalibrate the doctrines that determine the scope of a copyright owner’s rights during the copyright term, particularly those that establish the right to control the preparation and exploitation of copies and derivative works.