Overcoming the dualism: how metaphorically-driven conceptions of the public domain are a barrier to determining what intellectual property law is and ought to be.
European Data Protection Supervisor, BE
LSE LLB '20.
It has been said that intellectual property and the public domain are “paired together in a perpetual dance” . Yet while expressions like this portray the impression that intellectual property and the public domain are on an equal footing, it does not take long to discover that this is not the case. While intellectual property has been positively defined through centuries of legislation and case law, the public domain has witnessed no such equal treatment. Often lacking in positive definition, the public domain has also been poorly represented in the public debate. In an attempt to strengthen its position, scholars and judges have turned to the use of metaphors in order to capture and define the wealth of information and raw material from which we create, and to depict the function of the public domain in relation to intellectual property. However, the metaphors that have been used all share a common flaw: they obscure the fact that a literary device cannot adequately substitute for the lack of a clearly defined public domain in the first place. Therefore, to proactively safeguard the welfare of the public domain, we need to elevate the discussion beyond the limiting imagery and associations that metaphors offer, and focus on the role that the public domain needs to play in a democratic society with a free market economy.
How to Cite:
Hahn, I., 2023. Overcoming the dualism: how metaphorically-driven conceptions of the public domain are a barrier to determining what intellectual property law is and ought to be.. LSE Law Review, 8(2), pp.151–178.
16 Feb 2023.