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Center for the Study of the Public Domain Little men


Friday, November 9th


The Second Enclosure Movement?

The first enclosure movement, a state-backed conversion of common lands into privately held property, had a complex history. Though it disrupted the life of the village in a way that many observers found inhumane, it also allowed new and more efficient methods of production, greater investment in farming and larger agricultural yields. Some observers believe that we are now in the middle of a second enclosure movement, an enclosure of the commons of the mind by ever-expanding intellectual property rights. Will this enclosure give us the same productive gains as the first — an explosion of scientific and technical innovation? Or will it lead to legal deadlock, actually hurting creative development?

  • James Boyle Duke Law School

Phase I: Framing The Issues

The History and Theory of the Public Domain:
From Cheap Books to the Comedy of the Commons

This panel reviews the history and theory of the public domain and of the commons, from early discussions of the importance of limiting intellectual property rights, to contemporary interdisciplinary literature on the operation of common property regimes — ranging from environmental policy over the management of atmosphere or fisheries, to analysis of the free software and open source software movements.

3rd & 4th floor Loggia

The State of the Public Domain: A Report

This panel sets up the subsequent discussion by describing the current state and role of the public domain in three areas — the digital realm, science and innovation, and art and cultural policy.

Subject Area Study 1: Creativity, Appropriation, Culture and The Public Domain

This panel, which includes artists, industry representatives, and scholars of culture and intellectual property, will consider ways in which the distance between copyright and the culture of appropriation may be bridged.

Reception 6:30pm
Washington Duke Inn

Dinner 7:30 pm
Washington Duke Inn

Saturday, November 10th

Subject Area Study 2: Commodification of the Public Domain: The Challenge for Science and Innovation

This panel will continue to examine the challenge to science and innovation posed by a shrinking public domain. Papers will focus on developments in biotechnology and on legal, economic, and technical impediments to researchers’ access to scientific and technical databases.

  • Arti Rai University of Pennsylvania Law School.
    Focus Paper: The Public Domain in Biotechnology Research (paper with Rebecca Eisenberg)
  • Paul Uhlir National Research Council
  • Harlan J. Onsrud University of Maine Engineering
  • Stephen Berry University of Chicago, Chemistry
  • Rochelle Cooper Dreyfuss New York University School of Law


Subject Area Study 3: From Anarchist Software to Peer2Peer Culture: the Public Domain in Bandwidth, Software and Content

This panel deals with the different roles that the public domain has to play on a global network. How are we to manage the hardware and bandwidth on which the content flows, the software and protocols that create the network, and the content — the texts, songs, pictures and movies — that reside on the network?

Phase II: Developing Solutions

Lunch: Two Concurrent Roundtables

1. Public Domain Activism
This roundtable, which brings together some of the most prominent digital activists and public interest lawyers, will explore the various attempts to build an activist movement around intellectual property and public domain issues.

  • Caspar Bowden Foundation for Information Policy Research
  • Jonathan Tasini National Writers Union
  • Gigi Sohn Public Knowledge
  • Robin Gross Electronic Frontier Foundation
  • Manon Ress
  • Jeff Chester Center for Digital Democracy
  • Jennifer Toomey Future of Music Coalition
  • Marc Rotenberg Electronic Privacy Information Center
  • David Bollier Public Knowledge, New America Foundation


2. Constructing an E-Commons for Science: Concepts and Strategies
This roundtable will focus on possible solutions to the problems affecting researchers’ access to scientific and technical data, with a view to preserving the tradition of full and open exchange among scientists by various forms of collective action.

  • Laura N. Gasaway University of North Carolina
  • David Post Temple University
  • Steven Maurer Attorney
  • Anita R. Eisenstadt The National Science Foundation
  • Jane B. Griffith National Library of Medicine
  • Barbara Simons Association for Computing Machinery

Constitutionalizing the Public Domain

Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. — Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5-6 (Sup. Ct., 1966) One response to the contraction of the public domain has been to argue that there are constitutional limits on intellectual property. The panel will explore the likely future of constitutional law and theory as it applies to the public domain.

  • Yochai Benkler New York University Law School.
    Focus Paper: The Constitutionalization of the Public Domain
  • William Van Alystne Duke Law School
  • H. Jefferson Powell Duke Law School
  • Jed Rubenfeld Yale Law School
  • Larry Lessig Stanford Law School (moderator)

3:30-:345 pm

Reimagining the Public Domain

The last panel aims to provoke discussion by proposing some concrete (and not-so-concrete) next steps in the study, analysis and protection of the public domain.

  • Julie Cohen Georgetown University Law School
  • James Boyle Duke Law School
  • John Perry Barlow Electronic Frontier Foundation
  • David Bollier Public Knowledge, New America Foundation (moderator)

Open Discussion

Washington Duke Inn

Sunday 11th November

Informal Roundtables
Lunch will be served and the conference will conclude at 1pm.

The conference’s formal sessions and discussion papers aim to generate discussion and scholarship about the role of the public domain. On Sunday, we will continue the discussion informally in a set of roundtables around issues of particular interest.

Topics Will Include

  • Setting up a Creative Commons: Eric Saltzman, Berkman Center, Harvard Law School
  • Availability of Scientific Data: Future Planning: Paul Uhlir, National Academies

Open Event
Roundtable on Appropriationist Film
Art Crime/Crime Art: Nuestra Hernandez & Negativland

Sunday Nov 11, 9:30-11:30 am
Duke Law School
Open to the whole Duke Community
With a showing of Nuestra Hernandez (a new movie by David Lange & others) and some new work by Negativland, followed by a panel discussion featuring David Lange, Jane Gaines, Mark Hosler and Laurie Racine.

  • David Lange is Professor of Law at Duke University, where he has been a member of the faculty of the School of Law for 28 years. Prior to joining the Duke faculty he worked as a writer, producer, director and production coordinator in radio, television and motion picture production; as a practicing lawyer, with an emphasis in media law. He is the author of many articles including Recognizing the Public Domain and Cyberspace and Its Discontents: The Future of an Illusion.
  • Jane Gaines is Professor of Literature and English, and directs the Film and Video Program at Duke, which she founded in 1985. Her interests are film, television theory, feminist theory, critical legal studies, and cultural studies. She is the author of many articles and books including Contested Culture: The Image the Voice and the Law, (1991) for which she received the Katherine Singer Kovacs Award for best new book in film studies. She just completed a book on silent film history titled Fire and Desire: Mixed Race Movies in the Silent Era (Chicago, 2000).
  • Mark Hosler is a founding member of the appropriationist group Negativland and an audio/visual/collage artist/musician/activist. Negativland have been sued twice for copyright infringement and have, since 1991, been actively involved in advocating significant reforms in our nations copyright laws. He is one of the co-authors of "Fair Use:The Story Of The Letter U And The Numeral 2" by Negativland.
  • Laurie Racine is the President of the Center for the Public Domain. Apart from her prior careers in science, education, and healthcare policy Ms. Racine was also the former educational consultant to DoubleTake Magazine. . During her tenure there, she co-founded the DoubleTake Documentary Film Festival and served as its Managing Director. The DDFF is now the largest documentary film festival in the country. She continues as a Director and Secretary for the corporation, Documentary Arts.

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