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)

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See all articles by Kris Erickson

Kris Erickson

University of Leeds

Martin Kretschmer

University of Glasgow

Dinusha Mendis

Bournemouth University

Date Written: September 28, 2019

Abstract

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

Suggested Citation

Erickson, Kristofer and Kretschmer, Martin and Mendis, Dinusha, An Empirical Approach to the Public Domain (September 28, 2019). Chapter 4 (pp. 87-116) in J. Drexl and A. Kamperman Sanders (Eds.) The Innovation Society and Intellectual Property, Cheltenham: Edward Elgar (2019). Available at SSRN: https://ssrn.com/abstract=

Kristofer Erickson (Contact Author)

University of Leeds ( email )

School of Media and Communication
Leeds, Yorkshire LS2 9JT
United Kingdom

Martin Kretschmer

University of Glasgow ( email )

10 The Square
Glasgow, G12 8QQ
United Kingdom

Dinusha Mendis

Bournemouth University ( email )

Fern Barrow
Poole BH12 5BB, Dorset BH8 8EB
United Kingdom

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