ABSTRACT

Law’s imagined public domain in intellectual space is largely drawn from principles of Roman law governing physical space. In an attempt to describe or understand the relationship between the propertized and non-propertized zone of intellectual space these exclusions from the realm of intellectual property rights have spawned a whole set of metaphorical allusions. Intellectual space is no longer divided between a non-propertized zone and a propertized zone in which a rich diversity of author-originators and inventor-originators each wields exclusive rights over a small plot. In physical space, this concept merges the advantages of productive synergistic interaction with the need to avoid the tragedy of the commons. Attempting to analogize from Roman law concepts, this looks more like a constriction of res publicae than of res communes, and it illustrates their tendency to converge in the context of today’s intellectual space.