I recently received an email from an author asking me if I would write a post about why we need a public domain. Specifically, the questioner asked me why some things pass into the public domain while others do not; his example was that if you write a song, it eventually becomes PD, but if you make a chair you can keep it forever and “continue to draw enjoyment from it.”
It is understandable that the public domain is a source of annoyance and bewilderment to many creators. Their creations often seem like their children, and the expiration of copyright like an act of snatching those children away. My correspondent suggested that more people do not challenge the public domain “because everyone likes free.” But as I hope to suggest in this public answer to the question, the public domain is not free at all; it is purchased at the price of the copyright monopoly. The two things are different sides of the same coin. Were it not for the state-granted exclusive rights in copyright, there would be no need for the public domain. And we can imagine such a social arrangement; I just do not believe that most creators would think of it as an improvement.
We can begin with a deceptively simple question: Why is a chair different from a song? There are two reasons that matter here, I think. The first is that the song is intangible, which means that it is, in economic terms, “non-rivalrous.” and non-exclusive. That is a fancy way of saying that multiple people can possess an intangible good at the same time. George Bernard Shaw is credited with having expressed this truth succinctly:
If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchanges these ideas, then each of us will have two ideas.
Obviously I can sing a favorite song without depriving anyone else of that pleasure, just as books can be printed in multiple copies so that many people can enjoy the same work without disturbing each others’ enjoyment. Only one person can sit in a chair at the same time, however (usually, at least).
The other difference is that a chair, as a piece of tangible property, is bought and sold on a basically unregulated market. The chair maker sells her creation to whomever she can find, and once she does so, she surrenders control of it entirely. If another carpenter wants to copy it, he can do so and try to sell his copies. If he charges less, the competition will benefit chair buyers but not chair makers, since it will probably drive prices down. That is simply the chance one takes in a free market.
The market for intangible goods is not a free market, however. It is controlled by a state-granted monopoly called copyright. That is, the state gives a copyright holder rights that makers of other types of goods do not get. The most obvious one is protection against copying. The chair maker takes her chances in an open market, but the song writer benefits from a protected market that virtually eliminates competition for the goods he wants to sell. No one is allowed to make copies of his song and sell it for less, or to perform it in public without his permission, and those prohibitions are enforced by our courts. The reason for this is the fear that if intangible property were subject to a free market, it would be too easy to make copies of songs or books or movies and sell them for less, just as carpenters are allowed to do. This would be good for consumers, of course, because it would lower prices, but it is felt that it would so reduce the incentive for creators to create that we would suffer a shortage of poems and songs and films. Thus we give extra rights — rights that come with a social cost — to people who create intangible goods, and we call those rights “copyright.”
There is a clear relationship between these extra rights we give to copyright holders, that other creators and sellers of goods do not have, and the need for a public domain. Imagine for a minute that we gave similar protection against copying to chair makers. Eventually the ability to make a new chair would evaporate, since all of the possible designs that could serve the chair function would have been done by others, and all new chairs would be infringing. How could we solve this problem? By declaring that after a certain period of time — a period long enough for the chair maker to profit from his creation — older chairs would become free for others to imitate. This “public domain” for chairs would be required to keep up the supply of places to sit, if we decided to grant a state-enforced monopoly in chair design similar to copyright.
So the public domain is a required part of a system that allows creators to have monopoly control. It reduces the social cost of the monopoly by allowing less expensive editions of books or songs after that period during which an author or songwriter has the opportunity to make a profit. Remember that a chair maker can profit only once, when she sells the chair she has made. She must keep making chairs if she is to sustain a living. An author, on the other hand is allowed to profit exclusively during his entire lifetime for writing just one book, and even to pass that exclusive right to make a profit on to his children and, probably, grandchildren (based on a copyright term of life of the author plus seventy years). This obviously has a social cost; would J.D. Salenger have written more great novels if he had not been able to make a fortune over the 6o years of his life after Catcher in the Rye from sales of just that one book?
The most onerous cost of the copyright monopoly would be this potential reduction in new creativity. The creation of new works depends in so many cases on building upon things that have gone before. Shakespeare copied freely from earlier sources, just as George Harrison copied, albeit unconsciously, when he wrote “My Sweet Lord.” New intellectual property is always created “standing on the shoulders of giants,” and the public domain is a way to ensure that the copyright monopoly does not become a check on new creation rather than the incentive it is supposed to be. This is why the Constitution, in the clause that authorizes Congress to grant a copyright monopoly, stipulates that that monopoly be “for a limited time.” The public domain is a required part of the social and legal system of copyright protection.
As I said at the beginning, it is possible to imagine an alternative social system. Suppose we decided that we wanted neither exclusive rights (the copyright monopoly) nor the public domain. Instead, as a society we decided that authors and songwriters should be on the same footing as carpenters and everyone else who created tangible goods; all should compete on an equal footing in a free market. In the short term, this might be good for consumers. Songwriters would have to sell their songs once for the most money they could get, since their ability to make continuing profits over time would diminish. Companies and consumers would then be free to either share the song freely or undercut the sale price of competitors, so it would be easier and cheaper to obtain music, and the threat of litigation over sharing would vanish. In the long term term, it is hard to say whether this would be beneficial or harmful. The conventional wisdom is that creators would stop creating because they could not make a living. But maybe they would become more like carpenters, depending for continuing income on continuous creation. If that happened, society would benefit from more creation instead of less. As for the public domain, without the exclusive rights in copyright, society would not suffer the same costs and therefore would not need the same bargain that results in the public domain. And creators would be in the same situation, again, as chair makers; they could enjoy their creation in perpetuity, as long as they decided not to sell it. But, like the chair, once the song was sold it would be beyond the creators control forever.
I doubt that this scenario appeals to many creators. But I hope it helps illustrate why copyright and the public domain are inseparable concepts; they go together, as the old song says, like love and marriage.