As mentioned in my last post, this summer I am visiting the WZB to work on a paper about the digital public domain. Rifling through a huge pile of papers on the issue, I recently stumbled across Robert P. Merges’ 2004 essay “A New Dynamism in the Public Domain” (PDF) – and I really regret not having read this piece much earlier. He summarizes the main point of his paper as follows:

The simple point of this Essay is that these investments are invigorating the public domain with a new dynamism stemming from private action. These investments demonstrate that private action, and not just government policy, can augment the public domain. (p. 184)

Such private investments into the public domain, Merges argues, are inspired by the very expansions of intellectual property rights they seek to counteract:

Simply put, conditions may have changed enough to increase private incentives to reduce property-related hassles. Whatever form these take […] they have one thing in common. They increase the scope and content of the public domain. (p. 184)

Merges focuses on what he terms “Property-Preempting Investments” (PPIs) of firms, non-profits and individuals as a private-ordering response to excessively strong intellectual property righs. What I particularly like about this idea is that it allows him to subsume both open content licensing such as Creative Commons in the field of copyright as well as public domain databases of biotechnology companies in the realm of patent law under one conceptual umbrella.

As mentioned before (see “Bordercrossing Books: “Where Good Ideas Come From” by Steven Johnson“), I am looking forward to doing some comparative work on private-ordering approaches in copyright and patent law, the two hemispheres of intellectual property right. Merges’ paper is going to be conceptually helpful in this regard.