While certainly ambitious (and verbose), Merges falls into the kind of semantic conflation that he is so concerned with resolving in others’ works. Perhaps the most problematic example of this is his discussion of the “public domain” as a vast, amorphous sea of ideas, tropes, archetypes, and extant works which all are (allegedly) free to draw from.
At first glance, Merges portrays the “public domain” as an ever-present, shapeless resource, from which creators blissfully pluck ideas, unburdened by the earthly constraints of IP protection. In an almost comically brief aside, he describes the public domain as a “vast trove of shared, unowned material that precedes and surrounds the individual creator.” This portrayal of the public domain verges on the ethereal; whatever inspiration a creator needs, he must merely turn his eyes to the public domain and away from the sacrosanct realm of protected works, and he shall find ample manna from heaven.
Overestimation problems aside, Merges’ treatment of the public domain displays a basic flaw. Although he speaks of the “public domain” as a unitary (albeit ill-defined) whole, in reality he seems to be conflating two separate concepts. On one hand, Merges speaks of the public domain of ideas – a kind of domain of creative inheritance. This is the public domain of ideas, aesthetic conventions (such as how to represent a nose in visual art), character archetypes, musical scales, understanding of the human condition, and other concepts that form a collective pool of shared knowledge. These can either exist absent a fixed format, or take shape through significant repetition in “heritage” works such as holy texts, philosophical treatises, and most popular culture. These are wholly outside the realm of intellectual property protection, as they are too amorphous and shared for any one person to lay claim to.
Separate from the domain of creative inheritance, however, is the legal public domain of works which have fallen out of protection due to the passage of time. Although a few obvious exceptions come to mind (the Bible and Shakespeare’s canon among them), this area is largely unused.
It might be useful to draw a distinction by example. The novel of The Wizard of Oz falls into this domain, while its backbone – the story of a girl who becomes lost in a fairy land – is as old as oral history itself.
As Marion points out, even creators are themselves consumers of popular culture. Scarcely a fantasy novel in print today could claim that it did not draw its pantheon of races from JRR Tolkein’s work, still in copyright. What they consume from the public domain, however, comes almost exclusively from the domain of creative inheritance, and not the public domain of tangible works. Those ideas which are directly descendant of a unique work tend to reach modern creators in a filtered format, having passed through several interpretations before being reformed in a modern novel or play. Consider, for example, the extensive history of the song “Feelin’ Good”. While most listeners recognize Nina Simone’s dark, soulful version of the song, that itself is merely a cover of the original Hammerstein number from Roar of the Greasepaint, Smell of the Crowd – and the subsequently famous version by the band Muse is a reworking of Simone’s version.
Although I’m generally of the opinion that the public domain always deserves closer scrutiny as a concept, Merges gives it particularly short shrift in his work. That area of the public domain which he seems most concerned with is so far beyond the possibility of IP protection that it hardly seems worth waving it as an example of how the current system doesn’t overly limit new artists. As our society moves farther away from handed-down stories and closer to their specific instantiations in tangible mass media, we should instead be focusing on the public domain of works, not ideas.
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