How Much We're Missing From The Public Domain

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

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.

Filed Under: copyright, public domain