The importance of the commons in the context of intellectual property

CITATION: Van Der Walt, A.J. & Du Bois, M. 2013. The importance of the commons in the context of intellectual property. Stellenbosch Law Review = Stellenbosch Regstydskrif 24(1):31-54.The original publication is available at https://journals.co.za/content/journal/ju_slrThe intellectual commons or public domain is an important part of intellectual property law scholarship. In this regard it is necessary to examine the origins of the commons, what exactly the intellectual commons is and how the notion of the intellectual commons may be further developed. Especially in the United States of America there are concerns that the intellectual commons is currently being enclosed by extending intellectual property protection to areas of intellectual activity that were previously excluded from propertisation; and by extending intellectual property protection of existing rights. It may be argued that some intellectual products should remain in the commons or revert back to the commons in order to ensure that enough remains so that new intellectual products may be developed based on these existing products. However, there must also be enough of a property-right based incentive in order to ensure continued investment in the creation of new intellectual products. The important question is then, how may these two interests be balanced? This article examines the issues related to the commons in order to provide a framework which future revisions to intellectual property legislation may use as a point of departure to ensure that South African legislation does not encroach on the intellectual commons unduly. Examples from copyright law, patent law and traditional knowledge are used to demonstrate how the intellectual commons and intellectual property statutes interact.Publishers versio