The main categories of the material public domain were already well known to Roman law, which catalogued res nullius and res communes among the nonexclusive forms of property.
Hardin's tragedy of the commons only potentially applies here to the material public domain. Immaterial forms of common property cannot be degraded by overuse, and my two other forms of material common property both feature owners who can act to conserve the resource if necessary (as does collective property).
Immaterial Public Domain: Beyond Intellectual Property Rights
Situated public domains engage in partial theorizing, which can avoid the traps of universalizing logics.
A conceptual understanding and theorizing of situated public domains engenders these more socially just ways of policymaking.
This Article promotes a conceptual analytic for examining the public domain. If we are to take seriously the need expressed by James Boyle for a "legal realism of the public domain," then it is crucial to set forth a foundational ethic for studying public domains as situated.
Justice Stevens, dissenting in Eldred, relied on the Supreme Court's decisions in Graham, Sears, and Bonito Boats to underscore the importance of the public domain while arguing that Congress could not extend the copyright term retroactively.
The Eldred majority paid no heed to the statements made in Graham which indicated that Congress could not remove existent knowledge from the public domain or restrict free access to materials already publicly available.
So what are the metes and bounds of the public domain recognized by the Supreme Court?
Six public domains focus on freedoms to use information resources even when works embodying these resources are protected by intellectual property rights.
Their public domains (PD 7 and 8) would, respectively, grant artists a status presumptively entitling them to appropriate from others' works and provide a cultural landscape from which creators would be free to draw whatever inspired them to engage in artistic self-expression.
Several lessons emerge from clustering these public domains. First, although the legal status of information resources and public accessibility are, in a sense, orthogonal dimensions, the most robust public domains are those which are free (or relatively so) of IP encumbrances while at the same time being broadly accessible to members of the public.