"Do bad things happen when works fall into the public domain?"

Does this book behave
the same way ...

A rapt audience of nearly forty people (including late arrivals and no-shows) thoroughly enjoyed Professor Paul J. Heald's presentation yesterday afternoon, kindly hosted by Olswang LLP in its congenial panoramic Room 20, on "Do bad things happen when works fall into the public domain?"  Now the readers of this weblog can get a flavour of the event, thanks to a terrific exercise in note-taking by Dr Stephen Moffitt who records as follows:

"Why should we care about the public domain? Since the passing of the Copyright Term Extension Act (CTEA or Sonny Bono Act) in the US in 1998, there have been no copyright works passing into the public domain. Both England and Japan had contemplated a similar sort of extension but chose not to.

Clearly there is a concern about works falling into the public domain. Those who push for extensions to copyright do so on three main grounds.

1. There will be an underusage of these works as they become orphans with no owner to use them. This, Paul argues, was the basis for the CTEA.

2. Over-usage of public domain works, or the tragedy of the commons. Here works will be devalued because they will be used too much because they are free.

3. Debasement of the work through inappropriate or distasteful usage. This is mostly presented as the pornographic use of characters and stories

... as this book?

Since these arguments for the extension of term protection are based on assumptions that are quantifiable, Paul followed in the footsteps of Tim Brooks and began a series of papers where he attempted to prove or disprove the argument against the public domain through comparing the fate of works in the public domain to those still under copyright. In a series of three papers, he looked at the continued publication history of best sellers from 1907-1922, which are all in the public domain and those from 1923-1932, which are still under copyright. He looked at a number of measures, including whether the book was still in print, how many editions of the book were available and the price of the edition. His findings indicated that there was no statistical difference between the works in copyright and those outside. In fact, Paul noted that the data indicated that there was little support for the under-use of the public domain works as almost all of them were in print, compared to around 75% of the copyright works. Additionally, there appeared to be no meaningful difference in price between the two types either.

Paul then looked at popular music used in films between 1968-2008 in order to test the over-usage argument. Again he identified songs that were in the public domain and those that were in copyright in roughly the same timeframe as the books. Looking at the 74 songs that appeared in 4 or more films during that timeframe, he found no difference in usage between protected and unprotected works.This was the same for works that appeared in 1, 2 or 3 films. Public domain and copyright works were used roughly the same amount.

With regard to the debasement argument, Paul is currently working on a study of audiobooks and customer perception of their quality. In the study, he is looking at three types of works: amateur recordings of public domain works, professional recordings of public domain works and professional recordings of copyright works. In his first test of customer perceptions, he surveyed around 160 people on the quality of various recordings. While the full study is not complete, the preliminary reports indicate that there is no difference between the public domain recordings and the copyright ones.

[Stephen adds: these last few lines are a combination of Paul's comments after his talk and my own thoughts] The conclusions that Paul has reached is that there is little statistical evidence to support the assertions that bad things happen to works when they enter the public domain. One may argue that these studies are merely proxies; they do not really look at sales figures for example.  But, as Paul noted, the data is not really there. In the end, this is as damaging for the argument against the public domain as the results of these studies because, if there is no data to support, one way or another, the assertions about the problem of the public domain, we need to be more honest about the basis for our policy decisions".

The 1709 Blog hopes to get its hands on Paul's PowerPoints soon, in which case it will share them with readers too.