More on Valuing the Public Domain

Michael Risch previously posted on the study by Paul Heald, Kris Erickson, and Martin Kretschmer on the value of public domain photographs on Wikipedia. Those authors, along with Fabian Homberg and Dinusha Mendis, have posted a new paper, Copyright and the Value of the Public Domain: An Empirical Assessment, an independent report commissioned by the UK Intellectual Property Office. Their 90-page report has the ambitious goals of defining the public domain, mapping its size and frequency of use, identifying business models that benefit from the public domain, and evaluating existing theories of creativity based on these results. This report builds on work by scholars such as Yochai Benkler, Larry Lessig, and James Boyle, who have sought to define "the public domain" not just as the absence of copyright, but as an independent and valuable thing that is worth defending.

In this new UK IPO report, Erickson et al. define the public domain as including (1) works for which copyright has expired, (2) works that were never protected by copyright (from antiquity and folklore), (3) underlying ideas not being substantial expression, and (4) works offered to the public domain by their creator under a free and open license (including for commercial use). (While I think their definition makes sense, it might be worth trying to disentangle value from works with expired copyrights, which conceivably might not exist without copyright, and other works.) They do not attempt to quantify the overall value of the public domain (a perhaps impossible task). Rather, they describe results from three empirical studies as an initial step toward a larger assessment. In addition to the Wikipedia photo study that Michael described, they present results from interviews with 22 UK firms that used public domain materials and from a study of public-domain materials on Kickstarter.

The interviews of UK firms were focused on qualitatively understanding some different models of value chains based on public-domain works, including problems that these firms encounter. The authors summarize their results in Figure 2.3.

Figure 2.3 from Erickson et al. (click for larger view)

The Kickstarter study evaluated 1,933 projects in copyright industries that were posted in early 2014 to evaluate how the incorporation of public-domain materials into the project pitch affected the project success. The projects were coded based on whether the "main source of inspiration underlying the specific project" was an original work by the project creator, a public-domain work, or a third-party copyrighted work. They found that projects based on either public-domain or copyrighted works had higher success rates than original works (whether or not the project creator explicitly mentioned licensing the copyrighted work), and that projects based on public-domain or explicitly licensed copyrighted works had higher funding rates than original works. They also find some variations in these effects across media categories.

It's hard to know what to make of the Kickstarter results, and I think it might be easier if the authors included some examples of works falling in each category. Their take-home message is that "the findings support the idea that both public domain and third party licenced works deliver significant benefits to entrepreneurs operating in crowdfunding markets." A perhaps more depressing take is that crowdfunders prefer familiar works to ones that are truly new and innovative (as the endless stream of sequels and remakes from Hollywood might suggest).

Overall, I think this report is a very useful effort to define and quantify some value chains in creative industries that fall outside typical copyright-based business models. Of course, showing that public domain works have significant value doesn't tell us whether or how we should think differently about copyright law. One reaction might be that we should encourage (or at least not worry about) works falling into the public domain, and perhaps that we should encourage broad exceptions to copyright to encourage similar non-copyright-protected benefits. But my colleague Paul Goldstein has argued that "[t]he proper target . . . is not copyright, but transaction costs, and digital facilities, including the Internet, offer dramatic possibilities for reducing these transaction costs to close to zero." It is also unclear how much of the current public domain would not exist if not for the copyright incentive. In any case, trying to understand these value chains is an important first step.