How Much We're Missing From The Public Domain

from the the-public-domain-ain't-so-public dept

Wed, Sep 15th 2010 11:15am — Mike Masnick

This one is from a few months back, but I think it's an interesting topic that deserves some discussion. Rufus Pollock decided to look at how many books would be in the public domain today if we'd either kept copyright law at its original 14 years (plus the possibility of a 14 year renewal) or if we had copyright set at 15 years flat (a number that a recent research project suggested was the optimal length for copyright (pdf). Not surprisingly, he found that a hell of a lot more works would be in the public domain.

Rather than 19% of all books being in the public domain -- as the situation is today -- we'd have 52% of books being in the public domain under the 14+14 scenario and 75% of works being in the public domain under the 15 yr copyright scenario. As he notes, that latter number is comparable to the percentage of works in the public domain in 1795, in the early days of copyright law in the US. This is important to note, because if you actually understand the history of copyright law, you would know that it's true purpose was to expand the public domain, and thus it seems worthy to look at how it may be doing the exact opposite of that. In the past century, copyright law in the US has only expanded -- with the single exception of recognizing that federal documents (mostly) don't deserve copyright. Nothing new has entered the public domain through copyright expiring in quite some time, and nothing new will do so for many years as well (and don't be surprised if we get another attempt at copyright extension soon...).

	Today	1795 (14+14)	Today (14+14)	Today (15y)
Total Items	3.46m	179k	3.46m	3.46m
No. Public Domain	657k	140k	1.2m	2.59m
%tage Public Domain	19	78	52	75

Now, there are a few problems with Pollock's back-of-the-envelope calculation here. The biggest is that it's using a bit of the fallacy of the pre-determined outcome in that it assumes that the number of works produced would remain constant, no matter what the copyright law. That seems unlikely. I would imagine that supporters of stronger copyright laws would argue that fewer books would be produced with weaker copyright laws, but I doubt they could muster up much evidence to support that. Since we've seen repeatedly that when you compare like situations where there is strong copyright and weak copyright, generally there's greater output with weak or no copyright, I think a strong case could be made for greater output, if copyright terms were much lower.

After all, authors would still want to write, and most would still get the same overall benefit -- since very, very, very, very few books have much of an economic life past their 15th year. In fact, if you look at the numbers back in the pre-1976 Copyright Act world, where copyright holders had to renew their works, when it came to books only 8% (according to Posner & Landes -- another study found the number closer to 11% -- still quite low) did so, suggesting that most authors got the monopoly rents out of copyright in the first few years. On top of that, it would enable people to build on works in the public domain, potentially inspiring interesting new and different works that aren't possible with works in copyright today. Either way, it's interesting to see how little of our culture's books are found in the public domain today.

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Filed Under: copyright, public domain

15 Comments

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Anonymous Coward, 15 Sep 2010 @ 11:24am

Fuck culture?
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- :Lobo Santo (profile), 15 Sep 2010 @ 11:39am
  
  Re:
  Ah... You must be American.
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  - Dark Helmet (profile), 15 Sep 2010 @ 12:12pm
    
    Re: Re:
    Easy there, wolf man....
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    - :Lobo Santo (profile), 15 Sep 2010 @ 12:52pm
      
      Re: Re: Re:
      Popular international view of Americans:
      
      -Entirely lacking in culture.
      -Prudes, who have no problem with blood spattering explosions but raise a huge ruckus if there are titties.
      -House-building idiots--Americans build their houses of Styrofoam and sticks and then, amazingly, get upset when a stiff breeze comes along and destroys their house.
      
      ...
      
      The list goes on.
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      - chris (profile), 15 Sep 2010 @ 1:02pm
        
        Re: Re: Re: Re:
        Popular international view of Americans:
        
        americans are also ugly, fat, and stupid.
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        Berenerd (profile), 15 Sep 2010 @ 1:21pm
        
        Re: Re: Re: Re: Re:
        And....AMERICANS ARE THE DEVIL BOBBY BOUCHER!! THE DEVIL!!!
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      - Dark Helmet (profile), 15 Sep 2010 @ 1:40pm
        
        Re: Re: Re: Re:
        Huh. Well that's really silly, then. Painting with a broad brush is always fun, I guess, but rather meaningless when it comes to accuracy.
        
        Having said that, I love a good politically incorrect bit of slashing (but that's probably because, since I'm of Irish decent, I'm contantly a drunk ingrate), so by all means carry on!
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        :Lobo Santo (profile), 15 Sep 2010 @ 1:47pm
        
        Re: Re: Re: Re: Re:
        Respect.
        
        *fist bump*
        
        ; P
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ChurchHatesTucker (profile), 15 Sep 2010 @ 11:31am

Aw Contrary
" I would imagine that supporters of stronger copyright laws would argue that fewer books would be produced with weaker copyright laws, but I doubt they could muster up much evidence to support that."

Heck, the amount of work that is done IN SPITE OF the current regime is a strong counter-counter-argument. Imagine if all those fanfilms based on older properties could *sell* DVDs without hearing from a team of lawyers. You might just wind up with indie film industries instead of pure hobbieists.
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Carol, 15 Sep 2010 @ 12:28pm

Just to be devil's advocate here, we should also consider the effect of competition between public domain works and copyright protected works on the market. Public domain currently consists of pretty old stuff, with limited appeal for many people. If public domain was vastly enlarged, it would have much greater appeal, especially with modern technology making it so easy to access anything in the public domain. This would make the public domain a much bigger threat in the market to copyright protected works, and reduce the value of the copyright. I'm not sure if this would result in fewer new works, or more starving artists, but it would definitely be a big change. The combination of a large digital public domain and modern instant access technology has not been tried before.
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- Richard (profile), 15 Sep 2010 @ 12:39pm
  
  Re:
  Even if there were fewer new works they would be better quality - because they would be in competition with older works.
  
  I would take that as a win!
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  - Anonymous Coward, 15 Sep 2010 @ 7:54pm
    
    Re: Re:
    plus you would have fewer unnecessary redundancies with respect to new works which will change the focus from writing about something that has been written about 100 times before towards writing about new stuff (to capture an audience) and building on the old stuff. Plus we would have a larger public domain to build upon.
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- Ed C, 15 Sep 2010 @ 2:48pm
  
  Re:
  Sure, competing against 75% of all published books would create some competition, but the vast majority of the ones that would hit the 14-15 year mark wouldn't be all that popular even if they were free. Even the works on file sharing sites or P2P networks are mostly less than over 5 years old. The ones that are older would be even less popular. At best, you would only be competing against the top 8% or so that would still have been profitable, which is still far fewer than those that would still be under copyright.
  
  Either way, authors would no longer be sitting on their hands, idling expecting to collect royalty checks even after they're dead!
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- jupiterkansas (profile), 17 Sep 2010 @ 9:21am
  
  Re:
  I think a lot depends on how you view the public domain. Corporations have convinced the government that art is merely business, and business interests should be protected at all costs. The public domain says that art is our culture and heritage and is owned collectively, no by a single entity. Copyright says that when an artist's voice influences culture, culture can't respond to that voice without the permission of the artist. It stagnates culture, and instead of responding to art with new art - a cultural dialog - we simply mimic it to gain ownership of it ourselves - a cultural replicator. This is great for business, because they can sell the same art over and over - not just the original, but all its variations.
  
  For example, if Hamlet were under copyright, I would have to create my own version if I wanted total control over it. This may sound like creativity, but it's not - it's mimicry. If Hamlet were in the public domain, there would be no need for me to create another one. I already have total access to Hamlet. The goal would be to create something unique and different that would push culture in a new direction.
  
  You can't measure art by quantity - i.e. how many jobs it produces. You measure it by quality. I would argue that with weaker copyright, the quality of art and culture would rise dramatically, even if there is less of it. Honestly, the world doesn't need more artists, and it's not a path one should take for monetary gain. It's a path one takes because they have something significant to contribute to the world, and copyright actually prevents them from contributing.
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Karl (profile), 16 Sep 2010 @ 1:37pm

A thought experiment
A while back on another thread, I posted a simple thought experiment.

Picture an alternate universe which is identical to ours, except that it never had any copyright laws. All published works would be in the public domain.

Now, compare the number of works produced in that universe, with the number of works produced in ours.

Is the total number of works in that universe, less than the number of public domain works in ours?

If the answer is "no," then copyright law is not justified.
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