Public domain in intellectual property law

The law locks up the man or woman

Who steals the goose from off the common

But leaves the greater villain loose

Who steals the common from off the goose.

The law demands that we atone

When we take things we do not own

But leaves the lords and ladies fine

Who take things that are yours and mine.

The poor and wretched don’t escape

If they conspire the law to break;

This must be so but they endure

Those who conspire to make the law.

The law locks up the man or woman

Who steals the goose from off the common

And geese will still a common lack

Till they go and steal it back.



Perhaps for citizens of countries such as China, India, and Thailand which are notorious for being “havens for the production and sale of counterfeit and pirated goods”[2] freely downloading and enjoying the New York Times™ bestsellers over a cup of coffee would not seem as such a terrible wrong. Even in many other jurisdictions with relatively weaker or undeveloped copyright legislation exploiting a copyrighted work for publishing and distributing in commercial purposes or even for private uses might be considered as an acceptable, though illegal, business practice. Making a commercial use out of a work without holding a copyright or author’s authorization in developed countries, however, is mainly possible through ‘public domain’.

In this paper I will critically analyze the meaning (more correctly, many possible meanings offered by many famous scholars of IP sphere) and the role of ‘public domain’ in copyright. Apart from its traditional definition, exceptions and limitations to exclusive author rights will also be discussed as an integral part of ‘public domain’.

Exclusive rights and perpetual monopolies

Since the first bilateral copyright agreement in 1852, which later resulted in Berne Convention for the Protection of Literary and Artistic Works (shortly known as “the Berne Convention”), the exclusive rights of authors have been extensively reviewed and modified at international level. Ever since William Caxton established the first printing establishment in England in 1476 and ‘with each new stage of technological development, there has been a corresponding reformulation and extension of exclusive rights to ensure that authors (and their successors) are not deprived of the fruits of their works.’[3] Motives for the English Crown to take this revolutionary technology under control were mainly economical: through granting publishers and authors exclusive rights to publish particular books the Crown cut its lion’s share from growing market of literary works.

Apart from giving incentive for creation, legislators accepted the need to ensure that those claims for exclusive rights are not pushed too far through introduction of an idea for ‘public domain’. In US intellectual property law, for instance, the emergence of the term ‘public domain’ have been prompted by a number of judicial decisions. Though there is no definite starting point, the basic fact pattern in all the early cases were the same: ‘following the expiration of copyright, the right holder invokes unfair competition laws to prevent the use of the work. Courts reject the claim reasoning that the result would frustrate public’s right to reproduce and distribute the work, thus creating perpetual monopolies.’[4]

Public interest — a central goal

Public interest is perhaps the very core idea when defining the term ‘public domain’ both at international and at the level of local legislation. Both Jessica Litman and James Boyle[5] accept that the concept ‘public domain’ is a European import, derived from the French concept of domaine public and adopted in the Berne Convention. Though at European level, and even worldwide, it was not a breakthrough innovation. Even before the Berne Convention the Swiss official Numa Droz[6] mentioned that “limits to absolute protection are rightly set by the public interest” and put the public interest at the heart of the very idea of copyright.

Supreme Court Justice Samuel Miller, hearing a case at the Eastern District of Missouri, reasoned his decision in Merriam v. Holloway Pub. Co saying ‘when a man takes out a copyright, for any of his writings or works, he impliedly agrees that, at the expiration of that copyright, such writings or works shall go to the public and become public property. After the monopoly has expired, the public shall be entitled ever afterwards to the unrestricted use of the book.’[7] Justice Miller, who died shortly after his decision in the case, was not the first judge to use ‘public property’ formulation in IP law, though his decision and terminology he used were far more prominent and eventually became the foundation of the concept ‘public domain’ in the modern intellectual property law.

‘Public domain’ — a virtual wasteland?

In contemporary copyright law ‘public domain’ is widely used for intellectual property elements that are no longer under copyright protection or the works protection of which has lapsed, due to the expiration of the duration for protection.[10] The definition is sometimes stricter, including only the works that are not protected under copyright. Sometimes, the definition is broader, even welcoming the limitations to exclusive rights of author and fair use concept that are framed through three-step test at international level.

The traditional view of the ‘public domain’ as a term is that it only includes subject matter not protected[11] (or not any more) by copyright. Therefore, in contrast to exceptions to exclusive author rights, ‘public domain’,by definition, is no subject to intellectual property and rarely appear in the provisions of the law. The broad definition of ‘public domain’ can, therefore, be divided into two separate parts: the elements that are themselves unprotected — structural;exceptions and limitations, including fair use — functional ‘public domain’.[12]

At international level, more clear definition of the term ‘public domain’ can be found in 2003 UNESCO Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace:

“publicly accessible information, the use of which does not infringe any legal right, or any obligation of confidentiality. It thus refers on the one hand to the realm of all works or objects of related rights, which can be exploited by everybody without any authorization, for instance because protection is not granted under national or international law, or because of the expiration of the term of protection. It refers on the other hand to public data and official information produced and voluntarily made available by governments or international organizations.”

Whether the ‘public domain’ is a virtual wasteland of undeserving detritus or the font of all new creations[14] is now the matter of further arguments.

Fertile ground for new creations

Copyright and ‘public domain’ can easily be defined as instruments to balance constant clash of interests: exclusive private rights on the one hand and the freedom to read and express oneself on the other hand. Here, the slippery slope debates of US land appropriation should be recalled: whether the primary goal of ‘public domain’ is profit maximization or allocating the ‘lands’ for productive use? The author of the book International Copyright Paul Goldstein firmly states that the main purpose of ‘public domain’ and exclusive rights exceptions in general is to direct the works into their most beneficial use. ‘No less than copyright itself, he continues, public domain and properly calibrated limitations on copyright serve copyright law’s basic goal to put copyrighted works to their most beneficial use by enabling new generations of authors to build on the works of authors who preceded them.’[15]

The main argument in ‘public domain’ regarding its role,till now, has been whether it is the source of new materials for new creations, as suggested by James Boyle or Jessica Litman; or if ‘public domain’ is a virtual wasteland of what’s left over when all IP-protected works are subtracted.[16]

Pamela Samuelson also takes similar positivist approach as James Boyle and Jessica Litman and lists eight primary values of the public domain in copyright and patent regimes in her work — Challenges in Mapping Public Domain:[17]

· to serve as building block for creation of new knowledge or creation;

· to enable competitive imitation;

· to enable follow-on innovation;

· to enable low cost access to information;

· to get access to cultural heritage;

· to promote education;

· to promote public health and safety;

· to promote democratic process and values.

Most of these values at large have public interest as their central goal and are particularly important for the ‘public domain’ in copyright. In particular, free use and access of works in ‘public domain’ enables modern artists and creators to build upon pre-existing knowledge or innovation. If copyright by definition provides economic and moral incentives to foster creative process in society, ‘public domain’ serves as a pool of materials for the same purpose. The public domain also provides material for educational, scholar and doctrinal use, allowing access to important pieces of society’s knowledge, culture and scholarly work. [18]

Professor Jessica Litman, further emphasizes the ‘central importance of the ‘public domain’ in promoting enterprise of authorship’[19], criticizing the romantic view of originality. She firmly goes against the view that authors ‘conjure up new works from nothing’ and instead views creativity as ‘a combination of absorption, astigmatism, and amnesia’. She believes that ‘public domain’ is a key making all the IP system work.[20]

Very interesting insight into the ‘public domain’ can also be found in the works of Professor Edward Lee, who regards ‘public domain’ as a safeguard against excessive government secrecy. He states that ‘public domain’ is an effective mechanism against governmental misconduct that ensures public’s free and easy access to materials that are essential for self-governance and a learned citizenry.

Going back to US public domain land models, the analogy to contemporary IP law use of ‘public domain’ can be traced. The US public domain lands, as ‘public domain’ works in IP, were geographically distinct places, not subject to private appropriation. But most importantly, those lands were put into a socially and economically beneficial process of choosing the right use for them. As derivative works in IP law, the author deriving something new out of already existing ‘public domain’ material can be granted a copyright, thus appropriating the works into their most beneficial use.

Remaining as an effective mechanism for supporting public interest, ‘public domain’ is also cited as very efficient anti-monopolistic strategy. Concerned with monopolistic publishing guilds, John Locke, upon whose works the very core of private property concept is based, wrote to his friend, Edward Clarke, a Member of Parliament, urging him to speak in Parliament for the interests of the educated public at large:

I wish you would have some care of book-buyers as well as all of booksellers and the company of stationers, who having got a patent for all or most of the ancient Latin authors (by what right or pretense I know not) claim the text to be theirs, and so will not suffer fairer or more correct editions than any they print here, or with new comments to be imported without compounding with them, whereby these most useful books are excessively dear to scholars, and a monopoly is put into the hands of ignorant and lazy stationers.

This, in turn, shows a mere consumptive use of the ‘public domain’, works out of a copyright protection, can be made available and accessed freely at low or no cost at all. Largely because of the nature of literary and artistic works, even consumptive use will have a social benefit as it provides knowledge, culture and education to the public.[21]

Moreover, as in the example of Google Books, new business models can be built up upon works in ‘public domain’. This proves the economic and also above mentioned consumptive benefits, offering the works free to the public and producing revenue through advertising for the company’s search engine. Hence, not less than through copyright, as mentioned many times above, economic growth can be developed from ‘public domain’.

For me personally, ‘public domain’ is fruitful soil, a white piece of paper with brushes and colours, my grandma’s attic with all the dusty books and audio cassettes from soviet union period where I found my first book in Russian — Leo Tolstoy’s Anna Karenina. Perhaps, many modern artists would also agree that ‘public domain’ is of crucial importance, giving them fertile ground for their new openings in the absence of protection of works of their predecessors and resulting in a freedom to use, reproduce and communicate to the public.

Conclusion Bibliography

Berrong S, ‘Protecting Intellectual Property Worldwide’ (2013) Security Management <> Accessed 23 March 2013

Cohen J, ‘Copyright, Commodification, and Culture: Locating the Public Domain’ (2011) < > Accessed 27 April 2013

Dussolier Sand Benabou V, ‘Draw me a public domain’ (2008) Communia <> Accessed 2 April 2013

Dussolier S, ‘Scoping study on copyrights and related rights and public domain’ (2010) WIPO < > Accessed 3 April 2013

Goldstein P and Hugenholtz B, International Copyright (2nd edn, OUP 2010)

Litman J, ‘The Public Domain’ (1990) Emory Law Journal 39

Ricketson S, ‘Three-step test, deemed quantities, libraries and closed exceptions’ (2002) Centre For Copyright Studies Ltd <> Accessed 4 April 2013

Samuelson P, ‘Challenges in mapping the public domain’ (2007) <> Accessed 25 March

Samuelson P, ‘Mapping the digital public domain: Threats and Opportunities’ (2003) University of California <> Accessed 28 March 2013

Used sources:

[1] James Boyle, The Public Domain: enclosing the commons of the mind (Yale University Press 2008) 42; apart from being anonymous, the poem is really hard to date. Professor James Boyle finds its origins in the 18th century.

[2] Stephanie Berrong, ‘Protecting Intellectual Property Worldwide’ (2013) Security Management <> Accessed 23 March 2013

[3] Sam Ricketson, ‘Three-step test, deemed quantities, libraries and closed exceptions’ (2002) Centre For Copyright Studies Ltd <> Accessed 4 April 2013 1–5; and Paul Goldstein and Bernt Hugenholtz, International Copyright (2nd edn, OUP 2010)

[4] Julie Cohen, ‘Copyright, Commodification, and Culture: Locating the Public Domain’ (2011) < > Accessed 27 April 2013 125

[5] James Boyle, William Neal Reynolds Professor of Law, is co-founder of the Center for the Study of the Public Domain at Duke Law School; Jessica Litman, John F. Nickoll Professor of Law, is the author of Digital Copyright; see in general: Kellogg Co. v. National Biscuit Co., Singer Manufacturing Co. v. June Manufacturing Co.

[6] Numa Droz, Swiss Politician, Member of Free Democratic Party o Switzerland, elected as Swiss President through 1881–1887

[7] Julie Cohen, ‘Copyright, Commodification, and Culture: Locating the Public Domain’ (2011) < > Accessed 27 April 2013 125

[8] ibid. p 126

[9] Julie Cohen, ‘Copyright, Commodification, and Culture: Locating the Public Domain’ (2011) < > Accessed 27 April 2013 128

[10] Severine Dussolier, ‘Scoping study on copyrights and related rights and public domain’ (2010) WIPO < > Accessed 3 April 2013 6–7

[11] See Exhibit 1 The Composition of Public Domain for subject-matter not covered by copyright

[12] Severine Dussolier and V Benabou, ‘Draw me a public domain’ (2008) Communia <> Accessed 2 April 2013

[13] See Exhibit 2 for voluntary public domain example; the work of James Boyle, William Neal Reynolds Professor of Law, made available free for public and relinquished into public domain

[14] Paula Samuelson, ‘Mapping the digital public domain: Threats and Opportunities’ (2003) University of California <> Accessed 28 March 2013 147

[15] Paul Goldstein and Bernt Hugenholtz, International Copyright (2nd edn, OUP 2010) 360

[16] The supporters of the latter view: Benjamin Kaplan, Robert DeNicola

[17] Pamela Samuelson, ‘Challenges in mapping the public domain’ (2007) <> Accessed 25 March 2013

[18] Jessica Litman, ‘The Public Domain’ (1990) Emory Law Journal 39 p. 965–1023

[19] ibid. p 967

[20] ibid. p 969

[21] Paul Goldstein and Bernt Hugenholtz, International Copyright (2nd edn, OUP 2010) 361

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