Many persons consider them to be synonyms. It was Keats who wrote:
several things dovetailed in my mind, and at once it struck me, what quality went to form a man of achievement especially in literature and which Shakespeare possessed so enormously – I mean Negative Capability, that is when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason – Coleridge, for instance, would let go by a fine isolated verisimilitude caught from the penetralium of mystery, from being incapable of remaining content with half knowledge.
Being incapable of remaining content with half-knowledge we aver certainty simply to close a case and draw a line under events. Let us look at two straightforward examples: the ‘public domain’ and the ‘genericised Trade Mark’.
Too often we jump on autopilot to put up our hand to answer the question asking: What is the Public Domain? Like a young spark before Socrates we boast we can say this in just a few words; and claim to be able to sum up the concept in a terse watertight definition.
We might say: ‘Anything published is in the Public Domain’, and rest satisfied with ourselves. Yes all things published, given that they remain extant, are in the Public Domain, provided they are not in still under copyright. So we move on: ‘Anything out of copyright and extant that is published is in the Public Domain.’
Yes, truly; yet is everything that is in the Public Domain something that has been published? Is the box labelled Public Domain larger than and holding more things in it than only ‘having been published’? Items like ‘indigenous knowledge*’ and like orphaned stray items that just get a casual and general exposure.
(*Indigenous knowledge comprises items like folk medicine and lore; traditional fixes and myth, children’s playground rhymes, folk songs, proverbs.)
Who can say when or whether the word ‘published was ever/could ever be applied to indigenous knowledge that is in common circulation?
Similarly orphaned stray items, those labelled anonymous, which are merely ‘let go of’ by any authors they might have had, and yet they oddly enough ‘catch hold on’ the popular imagination: can these have said to have been published, in any reasonable sense of the word?
And so our focus has shifted off the words ‘Public Domain’ and we are now asking what things fit into the box labelled ‘Published’. We can go grammatical and ask whether ‘published’ implies intention to broadcast something; or whether it implies an affirmative action of actually doing something; or whether inadvertent inactive unintentional exposure counts as ‘publishing’; and indeed how much exposure must an item receive before it is generally considered ‘published’?
We are able to move further and further away from the original task and question; to split ever finer hairs and enumerate ever more delicate distinctions; all to the purpose of getting ourselves lost in a forest of words and speculations and attempts at pinning down meanings.
‘….here is no continuing city’
The genericised trade mark needs a little explanation – but its drift is easy to grasp. A word like ‘Hoover’ or like ‘Velcro’ or like ‘Yo-yo’ is known worldwide and in each case in the minds of great numbers of persons the word is associated with a very particular item of product.
The word ‘hoover’ has become so commonplace a substitute for the term ‘vacuum cleaner’ that the two descriptions to all intents and purposes are now synonymous.
Hence the owners of the Trade Mark ‘Hoover’ some time ago in UK lost their exclusive rights to use the word to market their models of vacuum cleaner there. The word ‘hoover’ had become ‘generic’: that is, it was no longer able alone to bear the burden of being a badge of origin for the Hoover Company in regard to the marketing of vacuum cleaners. Too many people, it had been felt, understood the word ‘hoover’ to mean any vacuum cleaner or else vacuum cleaners in general, and so its special value as a distinguisher of that one Brand of vacuum cleaner had been lost.
However, the words ‘Velcro’ and ‘Yo-yo’ you might be surprised to learn are not generic Trade Marks. They are still considered in the UK to be capable of representing (in the minds of most consumers of their products, and of products of the same nature?), that specialness which applies only to the Brand and the Company which makes and markets ‘Velcro’ fixing tapes and ‘Yo-yo’ string-pull spinning toys. Other Companies make goods of very much the same nature and purpose; but none of these other Companies can lawfully claim they make and market ‘Yo-yos’ or ‘Velcro’.
This might sound confusing; because it is. It is very hard for many people to state what they mean when they want either of these two products without them resorting to describing what they are after as ‘Velcro’ or a ‘Yo-yo’. This is common knowledge in the UK. It is, one might say, if one was being mischievous, in the Public Domain.
The Brand owners of these two products however have each made deliberate and concerted efforts to retain their exclusive rights to the use of their Trade Marks. Both regularly take out advertising in journals of the trades to which they belong which advises wholesalers and retailers of their exclusive legal claims to those words to designate their toys and their fasteners and no-one else’s.
So how does this work? Obviously the trade, the wholesalers and retailers of vacuum cleaners seem to have adopted the term ‘hoover’ also; and the Hoover Company itself was perhaps remiss in not working hard enough to protect the exclusivity of its Intellectual property in this instance? Maybe? I don’t really know?
I do know that there is another fine line here; an arbitrary line; one at the consideration and decision of various men and women who work arbitrating these things; and who are each individuals, maybe with precedent and guidelines to assist them; but always in the final instance having to make anew amongst our shared isolated existential rarification, a reaffirmation or else a repudiation of some Trade Mark holder’s valuable commodity: her Brand name.
Like all such decisions, like the guy who goes to the chair and is posthumously pardoned, some of them made were wrong decisions. But who is to say? And where is the brave person to contest them or to step up and take over the task? ‘I know better’ stops when the buck stoops beside the bystander who shouts it.
Please don’t get the idea that well it’s merely all about words and their meanings.
Words are tools that assist us in getting daily life done. The outcomes of the decisions we make are real and actual with repercussions and concatenations. Some decisions are so big that they steer the course of our lives powerfully thereafter – whether we are dumb or eloquent, dummies or smartarses, we have no choice but to make decisions big and small; and each decision in the final instance is ‘for better or worse, in sickness and in health, from this day forth, as long as [we each] shall live.’
Certainty perhaps then is being comfortable with half-truth; with a modicum of doubt; and being satisfied to be left hanging. This certainty becomes then not fact or knowledge or even truth; it becomes faith and belief and trust and reliance. A happiness to be around; not sure what or who we are; where from, where going, nor why or how or when – such certainty is:
‘…..being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason’
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