Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age

Abstract

What arguments make a case for the public domain in intellectual achievements? The arguments for private property in intellectual matters are rather thinner than the corresponding arguments for private property arguments for tangible things. Hence if there is a case for "publicness" even with tangible property, one would expect that case to be doubly powerful for intellectual achievements, where the private property rationale is weaker. This paper looks to the Roman law categories of publicness for tangible property, and finds analogies between certain types of tangible properties and intellectual endeavors. Though the Roman law of public property was sketchy, it was based on several different and quite subtle sets of reasons. Some things are public because they are appropriable but have not yet been reduced to possession (res nullius); some because like the air mantel they are physically incapable of privatization (res communes); some like roads and waterways because they serve network effects (res publicae); some - perhaps most interestingly - because they are sacred (res divini juris). This paper argues that intellectual property law effectively takes matters like expressions or inventions, which are physically incapable of individual ownership (res communes) and turns them into appropriable property (res nullius). But it also argues that the ultimate goal of this body of law is that intellectual endeavors over time become available to the public (res publicae) because of the positive networking effects from the easy exchange of ideas. The article concludes by noting that some iconic intellectual endeavors - notable the "canon" - become public for quasi-sacral reasons, as in the Roman law category of res divini juris.