Copyright Week Day 2: Honoring the Public Domain Through Policy

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It's Copyright Week! From today through Saturday, a number of groups around the Web will be exchanging ideas, information, and actions about how to fix copyright law for the better. Each day will be devoted to a different aspect of copyright law. For more on Copyright Week, see here.

Today's focus is on building and defending a robust public domain. Copyright limits free speech. That’s why it’s important for policymakers to keep it limited, and to leave as much in the public domain as possible.


The Internet is the cornerstone of free speech in the modern age.  I can say just about anything I want on this blog without fear that the police will arrest me or even try to discourage me. Right now, the only reason I’m even thinking about how the government might try to shut me up is because I’m writing a blog post about it.

Copyright Restricts Our Speech

Nevertheless, if I post in this space a poem that someone else has written, or a chapter from a book, or the lyrics to someone’s song or a recipe from a cookbook, the government could stop me.

We don’t often think about copyright as a speech restriction, but it is. Copyright limits my freedom to say whatever I want.

Anything in the Public Domain Is Fair Game, and Most of the Universe Is in It

Copyright only covers a small portion of total stuff in existence. Most of the universe is in the public domain. Here’s why:

  • Most things are not copyrightable in the first place. For example, ideas are never copyrightable, no matter how original. If a friend told me her great idea for a book, I could put the whole thing here on this blog. Doing so might make me a jerk, but it wouldn’t make me a copyright infringer. Facts are not copyrightable either. Nor are names, titles, or short phrases.
  • Most things made and/or published before 1923 are in the public domain. This includes all of Vincent Van Gogh’s paintings, all of Charles Dickens’s books, and all of the Brothers Grimm’s fairytales.
  • Things created by a U.S. government employee during the course of business are not copyrightable. Under copyright, there’s no reason I can’t use maps or photographs created by the government to illustrate my blog. And I can repost a government report as many times as I want.

Copyright Is a Carveout of the Public Domain, Not the Other Way Around

The public domain is most often discussed in the context of copyright, so it might sometimes seem like it only encompasses things for which copyright has lapsed. But the public domain is in fact much broader than copyright.

And rightfully so. Because copyright limits free speech, it’s important for us to keep it limited, and to leave as much in the public domain as we possibly can.

We Should Honor the Public Domain Through Policy

When we expand copyright, we take away from the public domain and, consequently, free speech. Of course, the opposite is true: in order to expand the public domain and free up more material for free speech, we need to limit copyright.

Policymakers should keep that in mind when they think about making changes to copyright law. Copyright should only extend as far as necessary to encourage people to make and share creative works, leaving as much as possible in the public domain.

Here are just two ways that copyright could be changed to honor the public domain:

  • Reduce terms. Copyright terms are too long. Even copyright expert William Patry agrees. Is a full 70 years of protection beyond a creator’s death really necessary as an incentive for artists to share their works? Let’s make a modest term reduction, to life plus 50. This would still provide plenty of reward for artists, but would release copyrighted works into the public domain 20 years earlier.
  • Reintroduce formalities. Not everyone requires an economic incentive to make and share creative works. So why does copyright automatically attach to any creative work the moment it is made public, regardless of whether or not the creator wants it? Let’s ask artists to provide us with some small sign that they want copyright protection before we give it. Those who need copyright protection as an incentive to create will still have it, but the public domain will grow substantially as creators who don’t care about copyright release their works directly into the public domain.

Copyright law is supposed to benefit the public, which means it should both make copyright strong enough to promote creativity, and keep copyright from taking away from the public domain unnecessarily.

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