Our culture is a rich mixture of material that is developed in commercial settings in a business model highly dependent on intellectual property, and of material that is generated in settings where intellectual property is hardly relevant at all. Interestingly, in both of these settings, the public domain has a central role to play. Much commercial art takes public domain material (Snow White, The Tempest, the Hunchback of Notre Dame, Mozart, Shakespeare) and reworks it into new, and newly protected, material. The enabling idioms of art and music and film—the 12 bar blues, the flattened fifth interval in be-bop, the boy-meets-girl story—all of these are in the public domain and no permission is needed to use them. The biting parody of Gone with the Wind, or the vitriolic criticism of a political biography, depend on the ability of the new author to make “fair use” of the work to which they refer. The realm of political debate itself depends on access to symbols and to information: access that ownership by a single entity might foreclose.

Intellectual property, then, is often important to the realm of commercial cultural production, but the public domain is vital to both sectors, commercial and non. Yet the line between intellectual property and the public domain is not a self-defining one, nor one that is free from controversy. The appropriationist artist, sampler, and counter-culture DJ push the limits of the law’s “fair use” privilege. The activist creatively distorts the trademark of the company she is criticizing. The internet publisher challenges retrospective copyright term extension. The digital film-maker wants to be able to make movies without “clearing” the rights to every image or snatch of song that might somehow implicate the rights of a copyright owner. The record company wishes to shut down a peer-to-peer network which is largely devoted to the unauthorized reproduction of commercial songs, but which is also used for legitimate non-infringing purposes. The line drawn by these struggles is a jagged one that cuts across every field in art and culture. Thus CSPD’s goal -- to study the balance between intellectual property and the public domain -- is an extraordinarily broad one. Here are a number of themes that help to define our particular interpretation of that goal.

• The Arts Project. Launched in 2004, the Arts Project analyzes the effects of intellectual property on cultural production, and is supported by a generous grant from the Rockefeller Foundation. As part of this project, we ran the Framed! conference exploring impacts of intellectual property law on documentary filmmaking and music, and a contest that gathered short films from around the world on intellectual property and creativity. As educational resources, we created short movies capturing insights from our Framed! conference, developed a chart explaining rights clearance problems faced by documentary filmmakers and possible solutions, and are working on comic books that explore the impacts of intellectual property on art accessibly, but with sophistication and humor.

• Orphan Works.  In 2005, the Center submitted a proposal to the Copyright Office on Access to  Orphan Works and Orphan Films. These are works still presumably under copyright, but with no locatable copyright holder.  Orphan works probably comprise the majority of the record of 20th century culture, but their orphan status means that artists, archivists, libraries, film restorers, and others practically have no access to them.  The Center's proposals describe these problems, and offer a solution. 

• The View from Artists. In particular, we are attempting to make sure that artists’ views are more widely heard on the intellectual property issues that concern them. What should the intellectual property system do for them, in protecting their work, in granting them access to create that work in the first place and in setting the baseline rules that determine the structure of distribution? These issues should not be decided merely by intermediaries. Our events have included world-renowned documentarians such as Chris Hegedus and Orlando Bagwell, musicians such as Negativland and DJ Spooky, and composers such as Duke's Anthony Kelley and Scott Lindroth. 
• Appropriation and Culture. In addition to the Arts Project, faculty and fellows associated with CSPD have put on conferences on such issues as Music & Theft, which featured lawyers, composers, cultural theorists, DJ’s and historians of the music business. They have also arranged a series of panels and papers on appropriation and fair use and in general have attempted to illuminate the relationship between creativity, appropriation, culture and the public domain.
• Broad-based Participation. While CSPD’s goal is to broaden the debate beyond the voices of those who are already well-represented and the ideas that are already well-known, we have not neglected the representatives of the content industries. Participants in our conferences have included Cary Sherman, the President of the Recording Industry Association of America, David Sanjek, Director of the Broadcast Music Incorporated (BMI) Archives, and a wide range of prominent attorneys who represent commercial entertainment interests. The broader Duke Intellectual Property Program recently invited Mr. Jack Valenti, the head of the Motion Picture Association of America, to deliver our annual Frey Lecture. The prior Frey Lecturers have been Larry Lessig and Yochai Benkler.
• A Focus on Neglected Forms of Cultural Production. Study of the actual practices of cultural creation across different fields and industries reveals widely diverging uses of intellectual property in order to encourage creativity. CSPD is dedicated to a better understanding of these practices – again following its signature theme of avoiding the idea that a “one size fits all” intellectual property policy will work everywhere.  Appropriately enough, given that concern with single-sizing, CSPD Director Jennifer Jenkins and Duke Law student Christine Cox drafted a framing paper on Fashion and Intellectual Property Law for a conference entitled "Ready to Share: Fashion and the Ownership of Creativity," which was hosted by the Norman Lear Center in January 2005. This paper discusses how and why intellectual property laws-copyright, trademark, trade dress, and patent protections-have been applied differently in the fashion industry than in other creative industries.
• A Search for Positive Solutions. CSPD faculty have played a major role in helping to set up Creative Commons, an organization that allows creators to share their works with the world, under the terms that they choose, by means of a series of customizable licenses that can be understood by machines and by humans, not just by lawyers.