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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.


Tyler T. Ochoa is Professor and Co-Director, Center for Intellectual Property Law, Whittier Law School. A.B. 1983, J.D. 1987, Stanford University.

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