The Size of the Public Domain (Without Term Extensions)

We’ve looked at the size of the public domain extensively in earlier posts.

The basic take away from the analysis was the finding that, based on library catalogue data, for books in the UK, approximately 15-20% of work was in the public domain — with public domain work being pretty old (70 years plus, due to the life+70 nature of copyright).

An interesting question to ask then is: how large would the public domain be if copyright had not been extended from its original length of 14 years with (possible) 14 year renewal (14+14) set out in Statute of Anne back in 1710? And how does this compare with how the situation, back when 14+14 was in “full swing”, say, 1795?

Furthermore, what about if copyright today was a simple 15 years — the point estimate for the optimal term of copyright found in paper on this subject? Well here’s the answer:

Today1795 (14+14)Today (14+14)Today (15y)
Total Items3.46m179k3.46m3.46m
No. Public Domain657k140k1.2m2.59m
%tage Public Domain19785275

Number and percentage of public domain works based on various scenarios based on Cambridge University Library catalogue data.

That’s right folks: based on the data available, if copyright had stayed at its Statute of Anne level, 52% of the books available today would in the public domain compared to an actual level of 19%. That’s around 600,000 additional items that would be in the public domain including works like Virginia Woolf’s (d. 1941) the Waves, Salinger’s Catcher in the Rye (pub. 1951) and Marquez’s Chronicle of a Death Foretold (pub. 1981).

For comparison, in 1795 78% of all extant works were in the public domain. A figure which we’d be close to having if copyright was a simple 15 years (in that case the public domain would be a substantial 75%).

To put this in visual terms, what the public domain is missing out as a result of copyright extension is the yellow region in the following figure: those are the set of works that would be public domain under 14+14 but aren’t under current copyright!

PD Stats

The Public Domain of books today (red), under 14+14 (yellow), and published output (black)

Update: I’ve posted the main summary statistics file including per-year counts. I’ve also started a CKAN data package: eupd-data for this EUPD-related data.

25 thoughts on “The Size of the Public Domain (Without Term Extensions)

  1. tacitus

    Thanks for those chilling figures Rufus. Another interesting denuder of the PD is the effective ‘re-copyrighting’ of works by custodian organisations like the National Portrait Gallery – after simply by copying a work they ‘restart’ the copyright term.

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  3. Avian

    The link to the “paper on this subject” (para. 4, above) is broken. I’d be interested in seeing it; is there a copy available somewhere else?

  4. R Canepa

    Interesting numbers indeed. I wonder how much we’ll lose as a culture by having works locked up in copyright (especially when those copyrights are in the hands of corporations). I’m a content creator, too, not just a consumer.

    Avian: If you look, the proper url is appended to the end of the link: just look for the www and copy+paste from there. I was able to download it by doing so.

  5. Ed Chamberlain

    Its great to see the UL data being used and exposed in this fashion.

    Its not only ‘custodian’ organisations that are ‘re-copyrighting’, publishers are buying up the rights to public domain works where copyright has lapsed or become orphaned, in anticipation of print on demand and ebook services.

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  11. Rufus Pollock Post author

    @choicky: yes, in general, reducing copyright term would reduce the total number of items produced (it is possible the opposite might happen, for example, if there were lots of reuse or backward bending supply curves). The whole point is that copyright involves a trade-off: (crudely) greater copyright monopoly means more works (because more revenue) but less access to all works. You can read more about this trade-off the how one can estimate optimal term in my paper mentioned above (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436186)

    Regarding the image you’re very welcome to use it as long as you cite the source — see http://www.rufuspollock.org/copying/

  12. Crosbie Fitch

    There are two definitions of the public domain that cast this in different lights:

    The PUBLIC DOMAIN is: 1) All published works, or 2) Published works not protected (against copying) by copyright

    Some people have received a fairly recent misunderstanding of copyright as an exchange of a short monopoly in return for the public’s cultural enrichment and subsequent liberty to share and build upon each published work. Such people have the second concept of ‘public domain’.

    There is an older understanding that copyright is supposed simply to encourage publication, and that the public benefits solely from publication and has little interest in the restoration of their liberty to make reproductions or derivatives. That’s because originally the public had no such aspiration to engage in such actions, because they had no technological means to do so, to enjoy such liberty (and why such liberty was so easy to suspend, with very little complaint). From this perspective, the public domain is all published works (to which the public can obtain access whether by purchasing a copy or in a library).

    This is also why ‘public domain’ does not figure in copyright legislation (except accidentally and only very recently).

    The problem with perpetuating this modern notion of published copyright protected works not being in the public domain is that it further extends and consolidates the copyright industry’s enclosure and control, i.e. as if a quasi-private domain.

    Published works belong to the public. The public have simply had their liberty to make copies or derivatives suspended. All we see with file-sharing is the public taking their liberty back. And that brings us to the third understanding of copyright, that it was not a bargain between the people and the publishing industry, but between the state and the press who both saw the benefits of control (power & lucre). That copyright would encourage learning or promote the progress is a glib (and false) pretext with which to indoctrinate naifs and allay critics, not the spur that gave rise to it.

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  16. Mike Linksvayer

    What renewal rate is assumed in the 14+14 scenario?

    I don’t understand how over twice as many books would be in the public domain today with 15 vs with 14+14, even with an unrealistic 100% renewal rate, given increasing number of books published through relevant period.

    Please enlighten, and thanks for your incredibly important research!

  17. Rufus Pollock Post author

    @Mike: for the 14+14 I assumed a 100% renewal in fact so I could have termed this ’28′ years. This was a ‘conservative’ assumption — remember that the Statute of Anne provided for automatic renewal if the author was still alive at the end of the term.

    Regarding the question of how can the increase be so large the simple answer is that: yes, production in books (or rather the number of books in the CUL) really did grow that fast! Do note that the graph is actually truncated at the year 2000 while my figures run up until 2009 (though the last 2 years clearly have incomplete data…). I’ve just posted the full set of counts for the CUL data (along with some other summary stats) in a CKAN package at: < http://ckan.net/package/eupd-data>

    Really glad you find this interesting!

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