A Defense of the Public Domain: A Scholarly Essay

33 Pages Posted: 28 Oct 2009 Last revised: 23 Nov 2009

See all articles by Laura N. Gasaway

Laura N. Gasaway

University of North Carolina School of Law


Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain to the restoration of some foreign copyrights that had entered the public domain in the United States. Some librarians have asked whether vigorous application of fair use could not substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court’s finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed so that authors who wish to do so can easily place their works in the public domain.

Keywords: copyright, fair use, public domain, libraries

Suggested Citation

Gasaway, Laura N., A Defense of the Public Domain: A Scholarly Essay. UNC Legal Studies Research Paper No. 1495233, Available at SSRN: https://ssrn.com/abstract=1495233 or http://dx.doi.org/10.2139/ssrn.1495233

Laura N. Gasaway (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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