Copyright Week: Our Lost Culture: What We Lose From Having Killed The Public Domain

from the we-need-more-public-domain dept

Yesterday, for Copyright Week, we wrote about transparency (and the lack of it in making copyright law). Today’s issue is the public domain. While we just wrote about the lack of new works going into the public domain this year (as happens every year in the US), I’ve seen some copyright maximalists asking why this is a big deal, since all the works listed are readily available to purchase. This is uninformed in the extreme. In the past I’ve suggested that everyone interested in these issues owes it to themselves to read James Boyle’s excellent book, The Public Domain, and I’ll reiterate that recommendation now. Not surprisingly, the book is available online for free, though you can also purchase a copy, which is a worthwhile investment.

However, the damage that our missing public domain does to culture, society, learning and knowledge is quite incredible. Two years ago, we had mentioned some research done by Professor Paul Heald, in which he noticed an incredible thing about new books available from Amazon, showing that plenty of recent new books were available, but they fade quickly… until you hit 1922 (the basic limit, before which nearly all works are in the public domain). And then there’s a sudden jump in the works available.

See that big gap? All of that is lost culture thanks to our restrictive copyright laws, and the 1976 Act’s ability to effectively kill off the public domain in the US. It should be seen as highly problematic that there are more books from the 1880s available for sale on Amazon than books from the 1980s.

Since then, Prof. Heald has continued to do even more research into the public domain and how it’s distorted our cultural output and made much of it disappear, going beyond just books, but also exploring the impact on music. In an even more recent paper, a draft of a book chapter, Prof. Heald again dives into the issue of the way copyright law has distorted the availability of culture. He takes that earlier chart, and then decides to compare the “new books” available on Amazon with “used books” available on ABE books (the most popular marketplace for used books), and shows the market distortions clearly:

In the paper, Heald also makes the case that the arguments against the public domain don’t make much sense. The idea that works would be “under exploited” because they convey no ownership is simply not supported by the data — as seen above. Similarly, the idea of works being “over exploited” because “anyone can do anything with them” seems just silly. It’s a misunderstanding of the “tragedy of the commons,” and there appears to be little empirical research to support the idea that there’s any real problem here.

As a related matter, we’ve pointed in the past to research concerning copyright renewal rates, as found in William Patry’s excellent book, Moral Panics and the Copyright Wars. Prior to the 1976 Act, copyright holders not only had to register, but they also had to “renew” their copyright after 28 years if they wanted a second 28 years of protection. And yet, in 1958 and 1959, very few works were actually renewed.

In fact, as you can see, with the exception of movies, the vast majority of copyright holders in every other area were actually fine with letting their works fall into the public domain after 28 years. And yet, for reasons that are still unexplained, we now automatically give them life plus 70 additional years, even though all of the evidence suggests they neither need nor want that level of protection, and that such levels of protection appear to make their works significantly less available.

And none of that even touches on the nature of creativity, and the way in which amazing new works often borrow and build upon the works of those who came before them. The greatest works of Shakespeare were more or less copied from others — but he was able to make them into something special. Why is that such a problem? If someone can make use of the work of someone else who failed to make it spectacular, and turn it into something amazing, why are we precluding that possibility? The entire purpose of copyright law in the US was supposed to be about enabling greater dissemination of learning and knowledge, and that’s by increasing the public domain. Yet, instead, because of regulatory capture, and the ability of gatekeepers to hijack the process, we’ve created a copyright law that does exactly the opposite. It restricts the dissemination of knowledge, decreases cultural sharing and availability, and generally harms creators and their ability to build on culturally relevant works.

What defenders of restrictive copyrights often fail to recognize is that the public domain is what made culture culture. Culture is a shared concept, in which lots of people are all experiencing the same or similar things — and making it their own as a part of that. We used to share stories, retell jokes, build on and change the works of others, and it was that shared effort that built culture and helped it spread. But copyright law has changed all that. Rather than a true cultural phenomenon, where culture is built up by the public in terms of what they create, share and build upon, we now have a situation where the gatekeepers decide what culture is, push it on everyone via broadcast means, and then tell us not to do anything about it… unless we pay exorbitant sums. That’s a perverse understanding of how culture happens, and one that does not benefit creators or the public (often one and the same), but is hugely beneficial for a few gatekeepers.

For a robust creative community and culture, it is important to bring back a healthy respect for the public domain.

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Comments on “Copyright Week: Our Lost Culture: What We Lose From Having Killed The Public Domain”

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Re: Re: Re: Re:

Back when Disney produced that film, the very first full length animated feature, it was considered a huge gamble that could make or break the company. The budget ballooned out of control and Disney himself had to mortgage his own house to complete the project, which completed with a cost of nearly 6 times its original production budget (

It’s quite likely that if that film had failed that not only would Disney’s company have failed, but that it would have been a very long time before anybody had attempted full length animation again – both in the US and later the massive Japanese anime industry which took great early influence from Disney’s output. It’s also quite likely that a large chunk of the film’s success came from the built-in audience and marketing value that came from adapting such a well-known story.

In other words, had Disney not had access to the public domain, modern animated cinema quite probably would not exist, at least not in anything approaching its current form. Everything from Akira to Toy Story may literally not exist. It’s about far more than whether or not Walt’s company would have made money.


and lets not forget the fact that it was piracy that is responsible for preserving Dr. Who episodes. If the laws were followed perfectly many works that did manage to live to see today may never have been able to. If breaking the law is required to preserve certain works for future generations then the law itself needs to be changed.


Re: Re:

That would be tough, because we calculate the value of copyrightable goods based on the copyright, not the intrinsic value of the good itself.

What this would involve is a business case for spending man-hours on reproducing already produced goods vs. the benefit to the economy drawn by the copy-right holder.

The math would drive even Nate Silver insane.


Re: an excellent point!

Copyright is very much like patent protection, which consists of a contract enforced by the government. The innovator gets temporary exclusivity and protection in exchange for the creation/invention becoming public after a certain period of time. After that period of time, the covered creation/invention is then food for new innovation. I can’t help but think of the Star Wars Darth Vader quote, ‘I am altering the deal, pray I don’t alter it further.’ That is what happened to the public, and extending copyright is truly an enormous theft from the public at large.


I’ve seen some copyright maximalists asking why this is a big deal, since all the works listed are readily available to purchase.

Those are the works that people remember, because they have remained in publication. The real loss to culture are all the works that have decayed away in various basements. These works are not listed because they have been forgotten, except for maybe a reference in some catalogue. If they had come into the public domain, perhaps someone could produced a more successful derivative work. This would explain the dip in the production of new works, lack of material that a budding author can rework.

Jeff Woodssays:

Re: Re: "readily available to purchase"

Many works are not available for purchase and some are lost forever because the only copies were locked away to rot. This even includes films that won Academy Awards; for example: Kentucky (1938) for which Walter Brennan won Best Actor In A Supporting Role.

Personally, I find it infuriating to go looking for content that I enjoyed years ago only to discover it is no longer available, or not available in convenient format. For example, once content is available via streaming (e.g. Netflix Instant) it should forever be available for streaming.


add to that the idiotic things that other governments do, in order to try to stem the flow of information, like Harper has been doing in Canada and you soon see how at some point there is going to be no backup of printed works at all. i may not be an ardent reader, but to know that if i want a particular book, the chance of finding it hasn’t been removed is nice!


Hmm, a decline in new books between 1930 and 1980? I wonder what was happening…Oh yeah…3 wars!! World War II, Korean War, and Vietnam War. I don’t think there was much time to write books on the battlefield.

I don’t think copyright has anything to do with it. Just look at all the bad movie remakes out there now. Willy Wonka, Clash of the Titans, Total Recall, and soon Robocop. People are running out of new ideas. Everything that comes out is pretty much the same now.

John Fendersonsays:

Re: Re:

I don’t think there was much time to write books on the battlefield.

Not all authors were on the battlefield. Maybe not even most. I’d be surprised is the existence of a major war depressed the publication rate. If anything, I would expect it to increase.

Just look at all the bad movie remakes out there now. Willy Wonka, Clash of the Titans, Total Recall, and soon Robocop.

What about them? I don’t understand your point.

People are running out of new ideas.

Not by a longshot! You can’t gauge these things by what major movie releases look like. Major movie releases are all about doing something safe — which typically means remaking something that worked in the past. That major movie releases are crap says nothing about the larger artistic landscape.


How about Techdirt?

It’s strange that while Techdirt keeps pushing for open access, Creative Commons, free sharing, and copyright reform, they don’t use an open license themselves. For all I know, the content here is automatically under ALL RIGHTS RESERVED (remember that a copyright statement at the bottom is not required for protection) and can’t be openly shared or even printed legally. I don’t see anywhere on this site that shows that Techdirt articles are under Creative Commons or a similar form of sharing that would follow the “open” philosophy this site keeps talking about.

Just saying…


Re: Re: Re: Re: How about Techdirt?

@ memphislimsan, Jan 14th, 2014 @ 2:59pm

Re: How about Techdirt?
True, I don’t see a badge for it or a link anywhere to a CC license, but Mike has said many times that the content on this site is free to reuse, even without attribution.

Just because Mike “says” or writes something here doesn’t mean it’s legally binding or permissive. Everyone knows everything published IS copyrighted unless definitely and EXPLICITLY waived. Mike could, for instance, be hoping to trick some large chump into “sharing” “his” content and then suing the pants off.

Anyhoo, you kids with your “lost culture”! HA! You ain’t learned or enjoyed NONE of the real riches of the past, ain’t enough ‘splosions in it.

If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! — But don’t at same time empower today’s mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. — Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.


Mike Masnicksays:

Re: Re: How about Techdirt?

It’s strange that while Techdirt keeps pushing for open access, Creative Commons, free sharing, and copyright reform, they don’t use an open license themselves. For all I know, the content here is automatically under ALL RIGHTS RESERVED (remember that a copyright statement at the bottom is not required for protection) and can’t be openly shared or even printed legally. I don’t see anywhere on this site that shows that Techdirt articles are under Creative Commons or a similar form of sharing that would follow the “open” philosophy this site keeps talking about.

We have declared multiple times that anything that is written by us (i.e., not cross posted from another site with permission) is granted to the public domain.

We do not include an explicit CC or other kind of license in part because we feel that effectively supports the idea of “permission” culture, where everyone feels the need to get permission or seek out a license first. Our work is in the public domain. Go have fun with it.


Re: Re: Re: Re: Re: Re: How about Techdirt?

In the post you responded to, Mike already said (emphasis added):

We do not include an explicit CC or other kind of license in part because we feel that effectively supports the idea of “permission” culture, where everyone feels the need to get permission or seek out a license first. Our work is in the public domain. Go have fun with it.

art guerrillasays:

Re: Re: Re: Re:

um, except works -not just films, but CONTEMPORARY computer programs/games/etc- ARE BEING ‘LOST’, for-freaking-ever…

so, let’s review shall we:
we ARE losing works, that is NOT a guess, or a possibility, or a slim theoretical chance, it IS happening…

thus, you are wrong on the actual factuals, secondly, the problem is only exacerbated by fantastical ‘rights’ which lock out everyone -practically speaking- for-freaking-ever…

you really should get out more…

art guerrillasays:

Re: Re: Re: Re:

um, did you just wake up from a long sleep ?

evidently you have missed the myriad of ‘legal’ decisions (um, citizens united ring a bell?) where korporations ARE considered not only ‘persons’, but SUPERIOR to mere, actual, flesh-and-blood persons in numerous respects…

in our upside-down bizarro world, soulless, immoral, immortal, fictitious entities we lovingly call korporations, have SUPERIOR rights to us 99%…


Re: Re:

An interesting thought, but just coincidence, and anyway, they don’t line up very well. That graph shows top incomes rising towards 1929; the New Editions graph is falling. Also, the New Editions graph shows a recent rise for the sole reason that new books stay in print a few years. By 2025, the copyright bathtub will be longer and the early 2000s will be as flat as the 1980s.


why no data on 2010, and why the HUGE spike from 1990 onwards, does the data not blow you claims out of the water ?

was this data corrected for the development of different media’s? such as radio? TV? and finally the internet?

the huge spikes from 1990 and 1960 would show copyright is the way to do it right, just saying that is what the data is showing.

data corrected for population growth, media growth, media trends ? or media types ?
was it corrected for depressions, wars, political conflicts?

any moose cow wordsays:

Re: Re:

All of which are either irrelevant or would make the disparity for most of the 20th century even greater. Overall, the population and number of copyrighted works increased over time. Despite that, the number of works currently available from most decades since 1922 has not seen a increase corresponding increase.

Re: Re:

why no data on 2010, and why the HUGE spike from 1990 onwards

Just FYI:

– The study was published two years ago, so it’s likely that 2010 data was the most recently available.

– The data doesn’t show how many titles, total, were published by decade. It shows how many titles which are being sold in 2010 were published, by decade.

– The data only shows new book titles sold by Amazon (in both figures) and used book titles sold by Abe Books (in the bottom figure). As far as I know, they only deal with physical books, since Abe Books doesn’t do any other kind.

In other words, it showed that in 2010, Amazon was selling more titles that were initially published in 1910, than it was selling titles that were initially published in 2010.

The drop-off before the 1990’s shows that the commercial shelf-life for a title under copyright is only about 10-20 years, while the commercial shelf-life for a title in the public domain is over a century.

It also shows how much is lost due to copyright protection. Consider that it’s very likely that the number of titles being published increased over time, at least in the long term. The difference between the 1910 figures and the figures for each decade, represent the bare minimum of titles that have fallen out of print. But because they’re still under copyright, no other publisher has a right to reprint them, meaning they’re completely unavailable.

Publishers have no economic motivation to spend money on out-of-print books. And if the copyright holders decide not to spend the money archiving the originals, it means that there’s a high likelihood that those titles are lost forever.

So, no, the data does not suggest that “copyright is the way to do it right.” It suggests that lengthy copyright terms result in culture being lost. It suggests that copyright is the way to do it wrong.

Incidentally, if you read the study itself, Heald also analyzes data about songs and DVD’s, which aren’t covered in this story. It’s worth a read.

Just Sayin'says:

Sort of a "no shit" story.

This is pretty much a non-story, but hey, if you desperately need to try to create an issue where little really exists, knock yourself out.

First off, the 1922 cut off for “new editions” pretty much sums up much of the business situation. If they actually have to pay the authors for their rights, many publishing houses won’t re-issue an old work. The business model likely wouldn’t work. So instead, they re-issue stuff that is in the public domain.

Now, missing from the discussion is the number of copies in each step. A short print run on a laser “book maker” type print system requires very little actual setup, and can run a very short number of copies. Are 10 books re-issued from 1921 at 10 copies each really the same as a re-print of a work from 1950s in the thousands?

The graphs clearly show an artificial hump where companies are willing to reprint public domain but not willing to deal with authors rights. Seems more of a business model issue rather than anything else. Make copyright 20 years shorter, and that bubble would move, but it would still be the same: They are trying to avoid paying rights.

Now, the new versus used deal isn’t very surprising either. While you can short run a book, for the most part the larger companies who have rights to books from the 80s, example, will only republish when there is real demand. The setup for them to run 100 copies, sign the contracts, get the rights sorted out, etc… no money there. A robust secondary marketplace takes care of most of that for them. Damn those first sale rights, right? It just shows a decent and functional marketplace.

So without any scale of actual books sold (rather than just a title count) you don’t actually show much of anything, except that when publishers can get a work for free, they might re-release it, but it appears that their supply may in fact outstrip demand.

Trying to draw conclusions when you left the most important part out (volume) is pretty much impossible. Did you leave it out on purpose?


Re: Re: Sort of a "no shit" story.

I disagree. From the view of a reader (or consumer, customer, cultural participant, whatever) I don’t care about volume. All I care is whether I can get the book I want.

And if copyright interferes with publishers (including wikimedia commons and project gutenberg) getting older books published, there is something seriously wrong with that copyright.

I don’t give a damn if you make a fortune in reprinting Shakespeares works and selling them, although everyone can download them for free already. All I care for is that they’re available.

Re: Re:

Please join me in shunning the terms “protection” and “piracy” in the context of copyright.

Unfortunately for everyone, those terms have been around for a very long time. In fact, the term “piracy” has been around longer than copyright itself has been around. It was used to describe people who violated the Stationer’s Monopoly during the 16th century.

I think a better approach is to let people know exactly what “piracy” means. Prior to the Statute of Anne, it meant any publisher who was willing to distribute copies of texts that were dangerous to the Crown. In other words, “piracy” was a reaction against State censorship. That is, piracy is simply free speech. (Even before the Internet, this was true to some degree; examine the history of pirate radio stations… It helps if you’re a fan of Christian Slater.)

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