Intellectual property and the public domain: an excursion into hyperreality

This chapter critically examines the concept and functions of the so-called public domain in intellectual space. While not necessarily doubting the rhetorical and (even) actual importance of such a place in intellectual space, the chapter examines the following questions: its existence; its efficacy as a legal concept – particularly when posed against the power of law’s property paradigm; and its ability to create the conditions necessary to deliver the benefits claimed on its behalf. Each of these questions, when opened up to examination, trigger a plethora of related enquiries. For example, the question of whether the public domain really exists might quickly resolve itself into an enquiry as to whether the intellectual public domain is really just a figment of the imagination of intellectual property scholars? (A question that is, perhaps, unavoidable in a chapter that purports to address, even tangentially, “hyperreality” .) Consequent questions might look something like the following: Is the intellectual public domain an imaginary space in law? Or just an imaginary space? If creativity flourishes in intellectual public space then what does it mean to say this space is imaginary? Isn’t creativity something real, rather than imaginary? Do real things exist in imaginary spaces?