On June 25th 2013, in the Cruciform building in UCL, 200 people (including this author) attended the fifth annual Sir Hugh Laddie lecture, hosted by the Institute of Brand and Innovation Law at UCL. This year’s speaker was Professor Hugh Hansen, director of Fordham Intellectual Property Institute – well known to any IP buff as the home of the highlight of any IP calendar – the Fordham IP conference.
His lecture – answering the question “Culture of the Public Domain – is it a good idea?” seemed at first glance to be a succinct one. After some reminiscing on the man for whom the lecture was held, Professor Hansen asked his central question – Is the culture of the Public Domain a good idea? – and answered it. No, he stated very firmly, it is not a good idea.
Luckily for those of us attending, he did elaborate further upon this statement. Hansen elaborated on the two basic groups of actors in the copyright world – firstly the ‘traditionalists’, composed mostly of a small group of copyright attorneys and academics, who feel called to copyright, and hold a natural law view of copyright: that it exists for the protection of investment and the benefit of creators and the public. In this camp, the “Public Domain” is the area where copyright goes to die, after rights expire, and it is no good thing. The second group he introduced is that of copyright ‘atheists and agnostics’, composed mostly of young academics and professionals in the tech side, who moved into copyright because it was interfering with their full and free use of technology. This groups identifies more closely with users and derivative creators, rather than original or new creators, and views copyright as a problem to be overcome, not the solution to protecting creative works. Hansen argued that this group was ever-growing, and newly-minted Atheists & Agnostics who then go on to clerk for judges may be the driving force behind judges who do not know much about copyright – their being steeped in the culture of the public domain.
Skipping neatly through the justifications for the culture of the public domain – that copyright incentivises creation, that it is a monopoly, a limited monopoly, or a legal monopoly, and that copyright is not a property right – Hansen tore them all down, using ideas framed within the preamble of the American Constitution, Lockean conceptions of property rights, the Magna Carta, and a healthy dose of common sense. He then moved on to enumerate the drawbacks of the culture of the public domain – fewer new or original works and a greater number of derivative works, and finally his problems with the culture of the public domain – that is a culture of self-absorption, which adversely affects moral values and encourages a lack of sensitivity towards others, even to the extent of demonising victims. Hansen finished up with a statement that was not uncontroversial, positing that stating that one is pro-Public Domain Culture is akin to saying one is actively anti-copyright.
While this author would not agree entirely with all of Hansen’s points – being of the opinion that the use of the term ‘Public Domain’ can be misleading and confusing, as well as taking issue with the painting of copyright atheists and agnostics as demons against the old traditionalists’ angelic (read: stubborn) adherence to old practices – there’s certainly no way that she could deny that the lecture was both interesting and stimulating, even as far as the heated debate during the question session immediately following the lecture. Certainly, there was substantial food for thought delivered in a way which was accessible to those inside and outside the minutiae of IP discussions. The 2015 Sir Hugh Laddie Lecture will have big shoes to fill.