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31 Law & Phil. 1 (2012)

handle is hein.journals/lwphil31 and id is 1 raw text is: Law and Philosophy (2012) 31: 1-48                       © Springer 2011
DOI 10.1007/s10982-011-9114-1
(Accepted 25 May 2011)
ABSTRACT. The rapid recent expansion of copyright law worldwide has sparked
efforts to defend the 'public domain' of non-propertized information, often on the
ground that an expansive public domain is a condition of a 'free culture'. Yet
questions remain about why the public domain is worth defending, what exactly a
free culture is, and what role (if any) authors' rights might play in relation to it.
From the standard liberal perspective shared by many critics of copyright expan-
sionism, the protection of individual expression by means of marketable property
rights in authors' works serves as an engine of progress towards a fully competitive
'marketplace of ideas' - though only if balanced by an extensive public domain
from which users may draw in the exercise of their own expressivity. This article
shows that a significantly different, and arguably richer, conception of what a free
culture is and how authors' rights underpin it emerges from a direct engagement
with the philosophy of Immanuel Kant. For Kant, progress towards a fully
emancipated (i.e. a 'mature' or 'enlightened') culture can only be achieved through
the critical intellectual activity that public communication demands: individual
expressive freedom is only a condition, not constitutive, of this 'freedom to make
public use of one's reason in all matters'. The main thesis defended in this article is
that when Kant's writings on publicity (critical public debate) are read in relation
to his writings on the legal organization of publishing, a necessary connection
emerges between authors' rights - as distinct from copyrights - and what Jurgen
Habermas and others have named the public sphere. I conclude that it is the public
sphere, and not the public domain as such, that should serve as the key reference
point in any evaluation of copyright law's role in relation to the possibility of a free
As currently institutionalized, copyrights are property rights that
subsist in the 'works' of authors, where works are legally defined to
include all the intellectual products marketed by the cultural and
information industries as publications, broadcast and online content,

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