Debunking The Claim That Bad Things Happen When Works Fall Into The Public Domain

If you've read James Boyle's book, The Public Domain, then you already should understand the reasons why the public domain is so important, and why it's a shame that, here in the US, we've had absolutely nothing going into the public domain for years, due to retroactive extension of copyright terms. One of the key complaints about such retroactive extension of copyrights is that it was done entirely without evidence that it was needed. Instead, we got purely faith-based arguments on the importance of keeping works out of the public domain. Those arguments tended to fall into three camps: (1) that public domain works get ignored, since a lack of monopoly means no one will do anything with them. (2) Totally contradicting the first claim, that public domain works would become overused in typical "tragedy of the commons" fashion, because there were no limits, and (3) that since the works can be used in a manner not approved by a copyright holder, it will lead to "inappropriate or distasteful" use (i.e., Mickey Mouse porn).

In the US, reason number one -- that public domain works are not used enough since there's no monopoly to make it worthwhile to invest in them and offer them up -- was a key driving force behind the last copyright extension, and likely will be used in a few years when Disney leads the fight for yet another copyright extension (what, you didn't think that was coming?).

Of course, now we actually have some evidence, and the initial reports suggest that all three reasons for hating on the public domain are simply not true. At all. The idea that bad things happen when works fall into the public domain is not supported by the data at all:

Since these arguments for the extension of term protection are based on assumptions that are quantifiable, [Professor] Paul [Heald] followed in the footsteps of Tim Brooks and began a series of papers where he attempted to prove or disprove the argument against the public domain through comparing the fate of works in the public domain to those still under copyright. In a series of three papers, he looked at the continued publication history of best sellers from 1907-1922, which are all in the public domain and those from 1923-1932, which are still under copyright. He looked at a number of measures, including whether the book was still in print, how many editions of the book were available and the price of the edition. His findings indicated that there was no statistical difference between the works in copyright and those outside. In fact, Paul noted that the data indicated that there was little support for the under-use of the public domain works as almost all of them were in print, compared to around 75% of the copyright works. Additionally, there appeared to be no meaningful difference in price between the two types either.

Paul then looked at popular music used in films between 1968-2008 in order to test the over-usage argument. Again he identified songs that were in the public domain and those that were in copyright in roughly the same timeframe as the books. Looking at the 74 songs that appeared in 4 or more films during that timeframe, he found no difference in usage between protected and unprotected works.This was the same for works that appeared in 1, 2 or 3 films. Public domain and copyright works were used roughly the same amount.

With regard to the debasement argument, Paul is currently working on a study of audiobooks and customer perception of their quality. In the study, he is looking at three types of works: amateur recordings of public domain works, professional recordings of public domain works and professional recordings of copyright works. In his first test of customer perceptions, he surveyed around 160 people on the quality of various recordings. While the full study is not complete, the preliminary reports indicate that there is no difference between the public domain recordings and the copyright ones.

Of course, will this evidence actually be used to prevent further copyright extensions and further limits on the public domain? That seems doubtful.

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Rebecca Mader Eva Green Lauren Conrad Arielle Kebbel Jessica Paré