Macmillan, Fiona --- "Altering the Contours of the Public Domain" [2007] ELECD 154; in Waelde, Charlotte; MacQueen, Hector (eds), "Intellectual Property" (Edward Elgar Publishing, 2007)

Book Title: Intellectual Property

Editor(s): Waelde, Charlotte; MacQueen, Hector

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845428747

Section: Chapter 6

Section Title: Altering the Contours of the Public Domain

Author(s): Macmillan, Fiona

Number of pages: 20

Extract:

6. Altering the contours of the public
domain
Fiona Macmillan

1 INTRODUCTION
As this volume so eloquently demonstrates, intellectual property scholarship
has become deeply involved in a discourse about the relationship of intellectual
property with the public domain. This has been an important debate driven by
serious concerns about the imperialistic tendencies of intellectual property, as
it extends its boundaries horizontally to include new types of intellectual activity
and vertically to confer wider powers of control on the relevant right-holders.
The frequent tendency of the debate is to create some sort of binary opposition,1
so that we divide the whole of intellectual space between that which is proper-
tised and that which is in the public domain.2 It is not just that the public domain
is other than intellectual property and vice versa, but that the two are envisaged
as butting up against one another so that, if we were to conceive of this in physi-
cal terms, each would fit snugly against the shape of the other. The implication
of this is that, if the two also take up the whole of intellectual space, altering
the contours of intellectual property will alter those of the public domain (and
vice versa).
Of course, the dangers of analogies between intellectual property and physical
property are considerable. It is not unknown for advocates of strong intellectual
property rights to draw comparisons between the theft of physical property and
that of intellectual property, nor is it uncommon to encounter the ...