On 11th October 2013, CREATe sponsored a seminar on Research Perspectives on the Public Domain, co-chaired by LKAS Research Fellow, Dr. Kris Erickson and CREATe Director Professor Martin Kretschmer. A full transcript of the event is now available as a CREATe working paper. Slide presentations from the event can be downloaded below.
The event included brief lectures by six interdisciplinary scholars, both domestic and international, who made presentations regarding their research findings and addressed challenges related to intellectual property regulations as well as any impact on the public domain. By bringing together diverse, interdisciplinary research areas, the seminar aimed to better situate the body of knowledge and value of the public domain in current research. The goals of the discussion included: identifying opportunities for scholars to benefit from cross-disciplinary perspectives, leveraging these perspectives to narrow upon current disciplinary blind spots in humanities research regarding intellectual property regulation, and bringing socially important questions to the forefront via this interdisciplinary approach.
The lectures began with Professor Paul Heald (Law, University of Illinois), who approached the challenge of public domain value by calculating book sales on Amazon and comparing the numbers of copyrighted and non-copyrighted works. While new book sales were high, the number gradually decreases but then spikes where works drop out of copyright, disproving the idea that works in the public domain fall out of care or maintenance.
Dr Iain Robert Smith (Media Studies, Roehampton University) explored unauthorised transnational appropriation and adaptation of films and how the film community perceives what is or what should be in the public domain. Examples of these unauthorised uses provide insight into the types of creativity that may be precluded by overly restrictive copyrights, especially in the case of noncompeting markets.
The lectures continued with Professor Mira Sundara Rajan (CREATe, University of Glasgow), who offered three cases in which the Indian government used different techniques in attempting to preserve cultural value. Cultural policy on copyright and the public domain led to varying approaches in unique cases, such as strictly protecting a work as a cultural treasure in one case but purchasing a copyright for a nominal fee and gifting the copyright to the citizenry in another.
Dr. Leonhard Dobusch (Organisational Theory, Freie Universität Berlin) proceeded by addressing shifting baseline effects and examining trends of temporal, jurisdictional, and instructional regulatory recursivity in intellectual property. These effects influence societal expectation of what is in the public domain and shift over time, leading to altered acceptance of regulations and use.
Professor Roberta Pearson (Film and Television Studies, Nottingham University) utilized a study of Sherlock Holmes; some Holmes works are under copyright protection, and some are available in the public domain. Beyond the issue of determining public domain states, much litigation surrounding unlicenced uses focuses on whether Holmes is fully constituted fictional character, which can also dictate public domain status. She pointed out that many users are paying licensing fees to avoid potential higher costs and risks of litigation even though most of the works are in the public domain.
Finally, Professor Graham Greenleaf (Law & Information Systems, University of New South Wales) approached the public domain with permission as a central issue, focusing on the public’s ability to use a works on equal terms without seeking prior permission. He examined public rights to works as the logically distinct components equivalent to a copyright owners’ rights, and identified how Australia’s legal system and others are underutilizing the insubstantial parts exclusion to copyright. As an exercise in public rights, blanket licenses responding to societal shifts, such as Google operating as de facto public domain with opt out and still experience a near universal non-objection to access for benign uses.
The morning lectures were followed by a roundtable discussion chaired by Professor. Martin Kretschmer. Participants included all presenters and the ERSC/Intellectual Property Office team currently pursuing a project entitled “Valuing the Public Domain,” which aims to develop methodologies for empirically evaluating the economic impact of the public domain for UK creative industries. The project team argued that we cannot presuppose that the public domain is defined. The team offered, as a starting point, three possible definitions. Works in the public domain may be: 1) what copyright law defines; 2) what copyright law defines as well as expressly permitted uses; or 3) all material that the public perceives or actually uses as if it were in the public domain. Additionally, the dichotomy of private and public domain is within each work, not whether the work in its entirety is in or out of the public domain, and this distinction dictates behavioural uses.
The panel agreed that practical, as opposed to legal, availability of knowledge is much more than legal public domain and, although many jurisdictions recognise some form of fair use which may allow access, fair use is insufficient for several reasons, including lack of certainty and its status as an affirmative defence to infringement. The panel discussed if there is an ideal copyright term, and the rationale of how copyright is limited because it is only carved out to perpetuate and contribute to human knowledge, not to restrict access. Further, developing countries are developing different normative use, which can influence cultural policy on access.
The lack of conformance with traditional economics further confounds the calculation of the value of public domain. For instance, the panel discussed the great number of YouTube videos with a small number of views, demonstrating the digital phenomenon of suppliers continuing to supply, even in absence of demand. The very low transaction costs of supplying digital material allows a wealth of material to reach the public, even if not expressly authorised. Lastly, the calculation of such a large number is, like all measures of such magnitude, a best estimate rather than precise figure. The public domain is complex and rich, and these lectures as well as the current and future research questions identified during this seminar brought forth new perspectives as well as cross-disciplinary issues related to the public domain and the wider context of the impact of intellectual property regulations.