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 (2019)
30 Pages Posted:
Date Written: September 28, 2019
In this chapter, we consider the location of the boundary between creative expressions protected by copyright and those in the public domain. Contrary to some legal theory, we adopt a user-centric definition of the public domain focused on the behaviours permitted to the end user. Our definition includes four categories of public domain works: (1) Copyright works that are out of term of protection: namely, literary and artistic works created by authors who died prior to 1944; (2) Materials that were never protected by copyright: namely, works from antiquity and folklore; (3) Underlying ideas not being substantial expression: namely, inspiration taken from preexisting works, including genre, plot or ideas; (4) Works offered to the public domain by their creator: namely, certain free and open-licensed works without restrictions. The chapter then outlines a methodology to study empirically the uptake and use of public domain materials. This enables us to identify and quantify the contribution of the public domain to innovation and creative enterprise.
Keywords: innovation, copyright, public domain, creative commons, creativity
JEL Classification: Z11
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