Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive. If one uses a spatial metaphor, the absolutist vision is a tessellated map. Areas of private property are neatly delineated from areas of the public domain. Mozart's plot sits next to that of Britney Spears; one public, the other private. In the granular view, the map is more complex. Ms. Spears' plot is cut through with rights to make fair use, as well as with limitations on ownership of standard themes. Instead of the simple tiled map, the granular vision has private plots with public roads running through them. 87
In popular discussion, we tend to use the absolutist view of both property and the public domain. Lawyers prefer the more complex view of property and are coming slowly to have a similarly complex view of the public domain. That is the definition I will be using. 88
The term "commons" is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. It is used in even more ways than the term "public domain." The first axis along which definitions of the term "commons" vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here. 89
The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others. I will discuss this type of commons in Chapter 8. 90
So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works. Why is it so important? Let us start with the dry reasons. 91
Information and innovation are largely nonrival and nonexcludable goods. This is Jefferson's point, though expressed in less graceful language. It has some interesting corollaries. Information is hard to value until you have it, but once you have it, how can you dispossess yourself of it? The apple can be taken back by the merchant if you decide not to buy. The facts or the formulae cannot. The moment when you might have decided to pay or not to pay is already over. The great economist Kenneth Arrow formalized this insight about information economics,58 and it profoundly shapes intellectual property policy. (To a large extent, for example, the requirement of "patent disclosure" attempts to solve this problem. I can read all about your mousetrap but I am still forbidden from using it. I can decide whether or not to license your design at that point.) But for all the material in the public domain, where no intellectual property right is necessary, this point is solved elegantly by having the information be "free as the air to common use." All of us can use the same store of information, innovation, and free culture. It will be available at its cost of reproduction—close to zero—and we can all build upon it without interfering with each other. Think of the English language, basic business methods, tables of logarithms, the Pythagorean theorem, Shakespeare's insights about human nature, the periodic table, Ohm's law, the sonnet form, the musical scale. 92
Would you have paid to purchase access to each of these? I might tell you that English was a superior communication tool—a really good command language for your cognitive operating system. There could be levels of access with corresponding prices. Would you pay to get access to "English Professional Edition"? We can certainly imagine such a way of organizing languages. (To some extent, scribal conventions operated this way. The languages of the professions still do. One paid for access to "law French" in the common law courts of England. One pays for an interpreter of contemporary legal jargon in today's legal system. But even there the language is free to the autodidact.) We can imagine language, scientific knowledge, basic algebra, the tonic scale, or the classics of four-hundred-year-old literature all being available only as property. Those who had the highest "value for use" would purchase them. Those who did not value them highly—whether because they could not know what could be built with them until they had done so or because they did not have the money—would not. What would this world, this culture, this science, this market look like? 93
It would probably be very inefficient, the economists tell us. Perfect information is a defining feature of the perfect market. The more commodified and restricted our access to information, the less efficient the operation of the market, the more poorly it allocates resources in our society. (The permanent and in some sense insoluble tension between the need to provide incentives to generate information, thus raising its cost, and the need to have access to perfect information for efficiency is the central feature of our intellectual property policy.)59 When we commodify too much we actually undermine creativity, since we are raising the price of the inputs for future creations—which might themselves be covered by intellectual property rights. But "inefficient" is too bloodless a way to describe this world. It would be awful. 94
Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all the good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture. Or at least it has been. 95
I deliberately gave easy examples. It is obvious how unnecessary but also how harmful it would be to extend property rights to language, to facts, to business methods and scientific algorithms, to the basic structures of music, to art whose creators are long dead. It is obvious that this would not produce more innovation, more debate, more art, more democracy. But what about the places where the value of the public domain is not obvious? 96