An Empirical Approach to the Public Domain

In this chapter, a new concept of the public domain is developed, focusing on the commercial and noncommercial potential of derivative products. This is needed for an empirical assessment of the value of the public domain. The traditional legal definition of the public domain takes the copyright term as the starting point, and defines the public domain as ‘out of copyright’. We argue that the public domain matters to society and the economy only when it is used. This requires an assessment from a behavioural perspective, covering all uses that are possible without asking for permission. The resulting complexity (subject matter not qualifying for protection, use relating to underlying ideas, copyright exceptions, private ordering through permissive licensing) needs to be filtered by practices in the media and entertainment industries that are understood to enable unrestricted downstream exploitation. We demonstrate how this conceptual approach can be applied to empirical study in the legal setting of the UK.