A really interesting question in intellectual property strategy is how to define the public domain. If you can cleary define the public domain, then you have a ready answer to all of those questions about freedom to operate – whether you can use or do something without fear of IP infringement.
People in intellectual property circles almost universally tend to focus on the public domain as what’s left over after intellectual property rights are exhausted. This is surely the easiest way to think about IP rights and freedom to operate. However, no one has yet systematically set out to answer the question: what are the boundaries of the public domain?
US trademark law legend J. Thomas McCarthy pulls no punches in his analysis of this question under US trademark law in the latest of Washington College of Law’s podcast series on Intellectual Property.
The public domain is what’s left behind by IP Rights – so the content of the public domain will always be shaped by the vagaries of IP law for each type of IP Right in each country. Nevertheless, any treatise that manages to codify what is in the public domain will be very popular indeed. Even though the rate of change in IP means that it will be out of date before it publishes.