To grasp what public domain means, it helps to understand what copyrights are and why they exist, according to S. Sean Tua professor of law at West Virginia University School of Law, who has taught courses in copyright, trademark and patent law.
Tu notes that in the U.S., the public policy behind copyright and patent protection actually originates in the Article I, Section 8 Clause 8 of the Constitution, commonly known as the Intellectual Property Clausewhich grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The purpose of copyright law is to encourage and incentivize writers and inventors to keep creating new works by giving them exclusive rights to their works, according to Tu. That means giving them exclusive rights for a limited time and distinguishing between intellectual property and other types of property, such as houses or other things that consumers own.
“With music, it’s particularly easy to understand, because of digital transfer,” Tu says. “If I’m listening to a Taylor Swift song, does that stop you from listening to a Taylor Swift song? No.” In contrast, “If I’m enjoying my house, you can’t enjoy this same house because there’s only one house. “We have to create a system to protect intellectual property that is different from real property and chattel (the legal term for moveable personal property).”
Copyright protections ensure that performers such as Taylor Swift get paid for their songs. They are not yet in the public domain.
Brian Friedman/Shutterstock
“For Taylor Swift to create a song, it’s very expensive, right?” Tu continues. “She has to put in the effort and time to make the recording. But then I can make an mp3 of it and send it off to the world. Similarly, it costs drug companies hundreds of millions of dollars in R&D costs as well as going through the FDA approval process to bring a drug to market. If a second drug company could simply copy the drug, no firm would ever invest in creating a drug in the first place. Patents play a role to allow companies to recuperate their initial investments while making a profit by limiting competition.”
Without copyright protection to ensure that Swift gets paid for her songs, it would be harder for her to earn a living as a performer. (Who knows, she might even still be working at her father’s Christmas tree farm.) Similarly, without patent protection, which lasts for 20 years after a drug’s invention, we may not get the life-saving drugs available in the U.S.
“As a society, we say that we want more Taylor Swift songs,” Tu says. “So what we’re going to do is give her that protection, so that she could make putting out songs her life’s work.”
One important thing about copyrights is that they not only protect the original work but restrict others’ ability to create derivative works that are based upon it, even if they are in other media. “If somebody says, ‘Well, you wrote the book, I’m going to make a movie that’s very similar to the book,” I can say, no, stop that.”
Also, while a copyright for a particular book or film may expire, the creator may still hold rights to the characters, if they appear in subsequent works that still remain under copyright. The “Steamboat Willie” version of Mickey Mouse, which is set to go into public domain in 2024might be fair game, “but you certainly couldn’t copy the ‘Fantasia’ version of Mickey,” Tu says. “The ‘Fantasia’ version of Mickey came out much later.”
