The immaterial public domain is much more important today than the material public domain.
Boyle: Recent Threats To And New Defences Of The Immaterial Public Domain
As described earlier, the neo-liberal expansion of private property rights at the end of the 20th century led to the shrinking of the immaterial public domain. A few authors such as David Lange and Jessica Litman warned that this shrinking came with significant costs, but it was only in the early 21st century that their warnings were picked up by a significant number of other people.
Others also acknowledge the presence of multiple public domains. Pamela Samuelson identifies thirteen different notions of the public domain.
This lack of attention raises awareness of the need to broaden our approach to studies of patent law and the public domain. During recent fieldwork in South Africa, I began to consider patent law as a feminist site of inquiry and to think through the difficulties of such an examination.
This Article therefore takes a modest first step in formulating a feminist analysis of patent law by scrutinizing conceptions of the public domain that tend to obscure a gendered analysis.
Although the Court stated in Eldred that the copyright and patent monopolies are not identical, there is a strong argument in the copyright context that the public domain cannot be reduced (76) because there still is a carefully crafted bargain between the grantor of the exclusive rights (the federal government) and the grantee authors and inventors.
The Court has created the "doctrinal underlay of the 'public domain'" and has policed congressional power to protect the commons.
In addition, a work could enter the public domain at the end of its initial twenty-eight year term if the copyright owner failed to comply with another formality, renewal.
BENEFITS AND RISKS OF ACCEPTING MULTIPLE PUBLIC DOMAINS
Accepting the existence of multiple public domains offers several benefits.
A third benefit of accepting multiple public domains is that context-sensitive uses can develop.