James Boyle on the Endangered Public Domain
Only the first question is excerpted:
Your new book is likely to stir significant debate. What is the public domain, why is it shrinking, and what should be done about it?
"JAMIE BOYLE (BOYLE): The public domain is the well of material that is free for all to use without commission or fee, so, e = mc2, the works of Shakespeare, the works of Mozart. More broadly it’s the boundary line on the other side of the intellectual property right. The thesis of the book is that it’s not intellectual property alone that is responsible for encouraging innovation or creativity or even for serving the interest of creators, but the mix between, and the balance between intellectual property and the public domain. The entire thesis of the book is that we have to get the balance right, we have to figure out where we need rights and where those rights should stop [and] that we have to do so based on evidence. We have to look at the effects of intellectual property rights, and look at extensions and look at arguments that we need to extend this right or to expand that right or create a new right. And actually look to see if there is any empirical evidence to support that.
If we do extend the rights, then we have to check to see whether or not our intervention has been successful, just as we would in any other regulatory endeavour. If we were introducing a new environmental protection, for example.
We can in fact harm creativity, innovation, the advance of technology and science, new medicines, by getting that balance wrong, by putting the lines in the wrong places. I have argued that, for a variety of reasons which I lay out in the book, all of the pressures on intellectual property have been outward. We have only been expanding rights. If you look back at the development of treaties, if you look back at the development of new rights, we have moved rights only in one direction. And when we have harmonised internationally, we have harmonised almost always, with a few exceptions, upward rather than downward, making the rights larger, and stronger and bigger, in the absence of evidence. We haven’t done careful reviews of the effects of this.
So basically mine is a clarion call to say we have worked as though we were assuming that increasing the rights automatically brought more innovation, but in fact that’s wrong, as a simple analysis will suggest, since intellectual property needs - indeed builds - on raw material: scientists need gene sequences, coders need access to lines of code, novelists need access to genres, musicians to obviously build on the work of others. And if we get the balance wrong, as I think we are, and if we expand only outwards, as we are, and if we make exceptions and limitations optional but make the new rights mandatory, then we are going to systematically mess up our intellectual property system. And that is what I think we have been doing." (http://www.ip-watch.org/weblog/index.php?p=1407)