The Public Domain and International Intellectual Property Law Treaties

Abstract

This paper reviews the linkages between public domains and international intellectual property treaties from several perspectives: international public goods as a link between the public domain and the IP system; the conception or construction of an international public domain; the public domain status of treaties as texts in themselves; the influence of treaties on national public domains; and a public domain perspective in international normsetting. Mapping the formal legal structure of international treaties across to 'the' or 'a' public domain illuminates the multifaceted character of public domains as social constructs. Diversity in the nature of 'publics' as collective entities and diversity in the kind of domains they maintain find an attenuated echo in the formal recognition of distinct states under the treaty system, in the consequent territoriality of IP rights, and in the scope for diversity of values and identities acknowledged in international treaties. A review of the treaties from a public domain perspective illustrates that the IP policymakers' two cognate tasks - defining exclusive rights or prerogatives to generate certain public goods, and defending a healthy public domain - is not a static zero-sum game. Taking a consciously idealized view, this interplay should be a dynamic process of crafting policy settings allowing for a positive feedback loop between private exclusivities and public domains, with the effect of producing fundamental public goods that transcend the legal infrastructure, but are defined by particular texts and the specific rights and entitlements that they provide for.