Valuing the Public Domain
In 2013-2015, CREATe undertook a major research project to build understanding about how the public domain adds value to society. As a two-year knowledge exchange project it was jointly funded by the UK Intellectual Property Office (IPO), the ESRC (Grant ES/K008137/1) and CREATe. The total funding amount was £104,000. The Principal Investigators were Kris Erickson and Martin Kretschmer (University of Glasgow). Co-Investigators were Paul Heald (University of Illinois), Fabian Homberg and Dinusha Mendis (Bournemouth University). The team adopted an interdisciplinary approach, incorporating perspectives from law, innovation and management studies, communication and economics. The final project report was published by the UK Government in March 2015 and can be downloaded as a PDF document here.
Defining the Public Domain
In October 2013, a symposium was organised at the University of Glasgow to gather input from policy stakeholders and academic experts on the definition and operationalization of the public domain for this empirical study.
Participants included Nicola Searle (Intellectual Property Office), Roberta Pearson (Film and Television Studies, Nottingham University), Dinusha Mendis (Law, Bournemouth University), Fabian Homberg (Business, Bournemouth University), Paul Heald (Law, University of Illinois), Iain Robert Smith (Media Studies, Roehampton University), Mira Sundara Rajan (Law, University of Glasgow), Graham Greenleaf (Law & Information Systems, University of New South Wales) Leonhard Dobusch (Organisational Theory, Freie Universität Berlin), Ronan Deazley (Law, University of Glasgow) and Maurizio Borghi (Law, Bournemouth University).
Digital proceedings of the event have been published as a CREATe working paper.
The public domain consists of information and creative works which are outside of copyright. This study focused on four types of public domain material: 1) Copyright works which are out of term of protection, including literary and artistic works created by authors who died prior to 1944; 2) Materials that were never protected by copyright, such as tales from antiquity and folklore; 3) Underlying ideas not being substantial expression, such as inspiration taken from pre-existing work including genre, plot or ideas; 4) Works offered to the public domain by their creator, via certain free and open licenses.
Other definitions of public domain are possible. For example, some authors have argued for inclusion of certain uses of a work, such as those covered by fair dealing copyright exceptions. We did not employ such a definition of the public domain, because fair dealing limitations to copyright depend on who wishes to make use of the copyright work and when, and because firms in the creative industries need clear guidelines. Even conservatively, our findings confirm that the public domain consists of a vast and heterogeneous amount of material, which generates value for society and the creative industries in multiple and unexpected ways. The published research report analyses in detail three such mechanisms of value generation.
Study 1: SMEs, Business Models and the Public Domain
The first study in the report concerns the exploitation of public domain materials by creative businesses, and their ability to generate value from these inputs. Findings from the 23 firms involved in this study suggest at least 4 distinct business models with different approaches to value creation and value capture, and with emphasis at different stages in the creative value chain. Some of the interviews with creative firms were recorded on video, and can be viewed below on this page. Working from this interview data, the research team inductively identified business model types and highlighted the following issues relating to public domain uptake:
- Creators working with visual or multimedia content reported difficulties in locating and securing high-quality sources of public domain works (image resolution, digital format). This was a significant challenge to commercialisation.
- Archives, museums, and libraries were frequently cited as useful partners when seeking access to public domain works, able to provide access to source material and data needed to ascertain copyright status of work.
- There was little concern about competition due to non-excludability of source material, but firms worried about costs of marketing and sustaining PD projects when initial development cost and investment was also low.
- Clarity on legal use (e.g. requirements for ‘diligent search’ when using orphan works) would improve commercialisation potential.
Study 2: Public Domain Works on Kickstarter
Crowdfunding platforms such as Kickstarter offer small independent producers the opportunity to raise funds. Often, pitch creators incorporate IP from a third party rightsholder, or material from the public domain. In order to assess the performance of projects built upon public domain material in a creative marketplace, the team performed a computer-assisted content analysis on 1,993 Kickstarter projects from January to April 2014. The research team employed statistical techniques to model likelihood of success of projects when different underlying copyright or public domain material was present. Surprisingly, both public domain and third party copyright works performed better than new and original projects. The main findings were as follows:
- Use of both public domain and third party licensed material were significantly associated with higher likelihood of project success.
- Influence of public domain status on success rate was most pronounced in Comics and Theatre, compared with Publishing and Video Games. This suggests that the role of PD materials differs across mediums. Direct re-publication of public domain literature does not seem to be rewarded – adaptation to another medium may be more attractive to backers.
- Explicitly obtaining copyright permission to use a third party work in a Kickstarter pitch was significantly associated with higher funding levels achieved.
- Previous experience and status of pitch creator was also significant to project success, suggesting that familiarity of both underlying work and its creator is important to Kickstarter funders.
Study 3: Availability of Public Domain Images on Wikipedia
As a global information resource, Wikipedia is emblematic of the public domain, being free for uptake by commercial and non-commercial users alike. Much of the content on Wikipedia is supplied by volunteer contributors. However, supplemental material such as photographs and illustrations may be subject to copyright. They must be used in such a way to ensure the openness and availability of articles to downstream users. Consequently, the Wikipedia platform potentially benefits from availability of photographs and illustrated material in the public domain (either due to copyright term expiration or open and unrestricted licensing). To assess the value of public domain images in this setting, the researchers studied the presence of images on biographical Wikipedia pages of 1,700 literary authors, lyricists and composers. The study finds that the availability of public domain (PD) material has a positive effect on the rate of inclusion of images, as well as a measurable impact on the performance of those article sub-pages (in the form of increased visitorship). Some of the key findings included in the report:
- Public domain availability makes a significant difference to inclusion of images on Wikipedia. Biographies for notable authors born prior to 1880 have a greater likelihood of containing an image than those born more recently, even though camera technology became widespread in the 20th Century. Less than 58% of authors in the sample born after 1880 have images associated with their Wikipedia pages.
- Controlling for notoriety of authors, composers and lyricists using a matched-pairs technique, we found that pages with public domain images attracted between 17% and 19% more visitors than pages where no image was available, reflecting the value those images contribute to the Wikipedia resource.
- Using commercially equivalent licence fees obtained from Corbis and Getty for images relating to the biographical sample, we estimate a total value of USD $208 million (GBP £138 million) per year for the 1,983,609 English-language Wikipedia pages in similar categories, if a commercial licence had to be paid.
 Based on exchange rate calculated on 25th January 2015.
Conclusions and Policy Recommendations
On the basis of empirical evidence gathered by the research team, the report makes a number of direct recommendations to policy. These concern: 1) increasing the amount of material available in the public domain, through legislation or expansion of open licensing initiatives, or by assisting archives and other holders of PD and orphan works; 2) improving knowledge about the public domain among creators and creative businesses, and where possible, clarifying the legal status of works; 3) improving information flow between creative industries and memory institutions and other holders of public domain materials.
Initiatives to increase the accessibility and searchability of public domain material will likely lower barriers to entry and encourage innovation and new products. Government is encouraged to consider examining how new innovation may be fostered through the provision of high-quality, reliable archives and datasets. Such projects should consider questions such as ease of access, transparency, portability and quality (these are emerging as key concerns in debates about open public data more generally).
Finally, the project report highlighted problems with prior methodologies used to assess the contribution of copyright-related economic activities to national accounts. In fact, this research demonstrates that development and exploitation of creative products which attract copyright cannot easily be disentangled from public domain ‘inputs’ to that same creative production; nor can the increasing number of creative outputs offered under free and unrestricted open licences, be easily counted as part of a tabulation of the contribution by ‘copyright industries’. A more nuanced and grounded approach is needed.
Dissemination and Stakeholder Event
In July 2014, CREATe investigator Erickson was embedded on a research placement with the Intellectual Property Office in London, where he worked with the Economics, Research and Evidence unit. This exchange helped identify policy questions that could be addressed by the empirical research.
On 5th December 2014 the research team held a stakeholder event in London, at the offices of Digital Catapult. Morning presentations by stakeholder participants the British Library, Auroch Digital, and 3Turn Productions were followed by a panel debate with representatives from the Intellectual Property Office, Wikimedia Foundation, and British Library, in addition to the core research team. The event explored potential applications of the research findings as well as innovative partnerships between public and private institutions around use of public domain materials.
Project Report and Academic Outputs:
Erickson, K., Heald, P., Homberg, F., Kretschmer, M., and Mendis, D. (2015) Copyright and the Value of the Public Domain: An Empirical Assessment. Project Report. UK Intellectual Property Office, Newport. pp. 1-81.
Erickson, K., and Kretschmer, M. (2014) Research Perspectives on the Public Domain: Digital Conference Proceedings. CREATe Working Paper 2014/3, pp. 1-58.
Heald, P. J., Erickson, K., and Kretschmer, M. (2015) The valuation of unprotected works: a case study of public domain photographs on Wikipedia. Harvard Journal of Law and Technology, 29(1), pp. 1-32.
Erickson, K. (2016) Defining the public domain in economic terms – approaches and consequences for policy. Etikk i praksis: Nordic Journal of Applied Ethics 2016(1), pp. 61-74.
Erickson, K., and Kretschmer, M. (2019) An Empirical Approach to the Public Domain. Chapter 4 (pp. 87-116) in J. Drexl and A. Kamperman Sanders (Eds.) The Innovation Society and Intellectual Property, Cheltenham: Edward Elgar
Fortune (2015) ‘Free’ Wikipedia photos worth at least $246 million a year, study says. 29th June, 2015.
WIPO (2015) New Study: Use of Public Domain Images on Wikipedia Worth Millions of Dollars Each Year. World Intellectual Property Organization Media Center, 22nd June, 2015.
Maurel, L. (2015) Quelle est la valeur économique du domaine publique? S.I.Lex Blog, 19th April, 2015.
Ciciora, P. (2015) Absence of copyright has its own economic, social benefits. Phys.org news wire, 14th April, 2015.
Wikimedia (2015) Excessive copyright terms proven to be a cost for society. Research Newsletter Vol 5, Issue 4. April 2015.
Erickson, K. (2015) A Healthy Public Domain Generates Millions in Economic Value – Not Bad for ‘Free’. The Conversation, 25th March, 2015.
Ouellette, L. (2015) More on Valuing the Public Domain. Written Description Blog, 5th March 2015.
Reda, J. (2015) New Copyright and the Public Domain. Presentation. Towards a new legislation on Intellectual Property in the digital single market, European Parliament, 3rd March, 2015.
Netzpolitik.org (2015) Wieviel ist freies Wissen wert? Schätzung am Beispiel des Bildbestands der Wikipedia. 6th February, 2015.
Phillips, J. (2015) How much are Wikipedia’s public domain photos worth? IPKat Blog, 4th February, 2015.
CREATe Blog (2014) Research Perspectives on the Public Domain. Transcript, Slide Presentations and other Media. 24th January, 2014.