Remembering the Public Domain

Rapid advances in communication technology over the past decade have resulted in the previously unimaginable ability to seamlessly exchange ideas and data on a global basis. Nonetheless, despite the undeniable progress that has been made, access to information is ironically becoming progressively more. This is due in large part to the fact that resources which belong in the public domain are increasingly being transformed into private property. The carefully balanced provisions of copyright law are gradually becoming displaced by contractual, technological, and legislative constraints that allow for the tight control of access to and use of the materials in question. Although in limited circumstances generally unrestricted power to limit access and use may seem reasonable, in most situations this is not the case. Frequently the end results of such unwarranted restraints are considerable impediments to public access to ideas and information. Such a state of affairs has potentially serious consequences, as the ability to access and make use of these resources is critically important to creativity, competition, innovation, and a democratic culture. Unfortunately, lawmakers promulgating statutes and judges resolving disputes concerning data have failed to adequately take into account the multi-dimensional problems involved in disputes concerning access to information. The focus is often inappropriately centered on the tangible property within which information is contained, for example in a software program or a computer server. Additionally, once an owner of such property is ascertained, all of the conventional attributes of ownership are normally granted, including the right to exclude. As a result, almost insurmountable obstacles are faced by any other party whose interests might be affected by a lack of access, as the burden almost always falls on these other parties to explain why the previously identified owner\u27s rights should be limited. Furthermore, facts and ideas increasingly are viewed merely as commodities in the marketplace, even though they constitute the building blocks of knowledge and are supposed to remain within the public domain. This myopic view of property rights fails to ensure that future creators, innovators, and participants in democratic culture have the benefit of these essential materials. Therefore, it is imperative that judges and policy makers give more comprehensive attention to the various interests involved in controversies affecting such resources and recognize that the way in which property rights are structured reflect the values we find important and the type of society we wish to create