Recognizing the Public Domain

In a celebrated lecture on the law of copyright, Zechariah Chafee suggested that objections to intellectual property are probably rooted in a more general distaste for private property. He acknowledged, however, that differences among species of property can justify differences in their treatment in law. In this brief essay, I will recall some of the attributes of intellectual property that justify particular concern when new rights are being recognized or existing ones enlarged. I will argue that the growth of intellectual property in recent years has been uncontrolled to the point of recklessness. And I will suggest that recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain.