Metaphors on the Public Domain

Since the decision on Eldred v. Ashcroft there has been a lot of discussion on the web about the failure to find an appropriate metaphor for intellectual property. Doc Searles wrote about this after the recent decision.

Today I found another longer essay by Robert A. Baron that appears to be worth further reading. It includes this bit about falling into the public domain.

While “to fall into the public domain” is a common enough expression, sensitivity to its implied meaning is now causing some speakers to be wary of its use. On its face, one would think that the use of the word “fall” would not be so significant; after all, we say, “fall into the public domain” so automatically that one must pay special attention to avoid it. However, if we examine this word just a bit, we’ll come to realize that the word “fall,” when used this way, encapsulates a host of mythic and morally charged ideas that, by implication, serve to disparage the public domain, to undermine its perceived value, and thereby to certify the comparatively favorable disposition our civilization extends toward works that exist and remain under copyright. Our society favors the state of ownership – a colonial inheritance that mandates that possession should overtake that which is not yet held by anyone. We are taught that the legal status of being “under” copyright (like being “under” that protective umbrella used to sell insurance) is good and safe, and the “loss” or abandonment of copyright is unfortunate, precarious, and even to some degree, unethical or at least indicative of a moral fault within us. When copyright protection has been lost, we sometimes say that a work has been “cast” (like refuse) into the public domain.

Needless to say the language we use to describe the process of creativity often becomes as important as the actual creative process because the language creates its own boundaries and its own assumptions.