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28 U. Dayton L. Rev. 215 (2002-2003)
Origins and Meanings of the Public Domain

handle is hein.journals/udlr28 and id is 227 raw text is: ORIGINS AND MEANINGS OF THE PUBLIC DOMAIN* Tyler T. Ochoa* Abstract This article surveys the history and development of the public domain in intellectual property law. The public domain has existed since time immemorial, and was first recognized in the Statute of Monopolies and the Statute of Anne, which placed time limits on patents and copyrights, after which the invention or work could be copied freely by anyone. The concept was enshrined in the U.S. Constitution and reflected in American patent and copyright laws. Before 1896, courts referred to matter not protected by patent or copyright law as public property or common property. In 1896, the U.S. Supreme Court imported the term 'public domain from French law, and it was popularized by Learned Hand in the first decades of the 20th Century. Since 1960, the U.S. Supreme Court has repeatedly emphasized the Constitutional dimensions of the public domain. Those dimensions include two important principles that have been obscured in recent years: public ownership of matter in the public domain and the irrevocable nature of the public domain. I. INTRODUCTION The public domain is something that we enjoy every day without thinking about it. We take it for granted that the plays of Shakespeare and the symphonies of Beethoven are in the public domain and may be freely copied, adapted, and performed by anyone. Our theaters are filled with movies and musicals based on public domain works. We daily use technology derived from earlier inventions, such as the car, the airplane, the telephone, and the computer. We understand intuitively that any scientist may rely on Newton's laws of motion or Einstein's theory of relativity as he or she sees fit. We use common words that once were brand names such as, aspirin, cellophane, thermos, and escalator. Students and scholars debate historical events, ranging from the origins of man to the impeachment of President Clinton. Copyright © 2002 Tyler T. Ochoa. Professor and Co-Director, Center for Intellectual Property Law, Whittier Law School. A.B. 1983, J.D. 1987, Stanford University. The author would like to thank Richard Gruner, Peter Reich, David Welkowitz, Andrew Wistrich, and Craig G'ossman for their comments on a draft of this article; Curt Jones and the staff of the Whittier Law School library for their assistance in locating material at other libraries; and Jeffrey Matsuura of the University of Dayton for inviting me to speak at the Symposium.

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