Toward a Public Trust Doctrine in Copyright Law

As a full-fledged legal tool in property and environmental law, the public trust doctrine has played an important role in deterring inappropriate exploitation of natural resources and improving protection of the environment. In this article, I explore the possibility of introducing the public trust doctrine into copyright law and explain why we need to expand the use of the public trust doctrine from natural resources to knowledge and information as informational resources. By and large, I demonstrate that compared with the Copyright Clause and the First Amendment, the public trust doctrine, if introduced into copyright law, can create more effective and powerful institutional mandates to invalidate the socially unsound expansion of copyright protection, such as the recent extension of copyright terms. Moreover, I propose that we can tap into the public trust doctrine to generate a set of new legal techniques aimed at enriching copyright adjudication and policy-making discourse. To this end, I argue that we should use the doctrine to promote the ethical values of guardianship, responsibility, and community. Embedded in these values, the doctrine, as I will show, aims to promote and protect the public’s collective rights in knowledge and information held in public trust for all citizens. Moreover, the doctrine paves a new way to enforce both the government’s political responsibilities and the copyright holders’ social responsibilities regarding public access to and use of knowledge and information. Besides, I show how courts could apply the public trust doctrine to create alternative approaches to weigh the constitutionality of the recent twenty-year extension of copyright terms and to lay out a new decision for the Google Book Search Project case