COMMUNIA FINAL REPORT | The Value of the Public Domain for Europe

Economic and social value against intellectual property rhetoric

The public domain is a valuable global asset; a forward looking approach would allow the extraction of considerable economic and, especially, social value from it. In particular, COMMUNIA asserts that open and public domain approaches can produce economic and social value, as spelled out at the 1st COMMUNIA Conference which was devoted to the Assessment of Economic and Social Impact of Digital Public Domain Through Europe and the 2nd COMMUNIA Conference. Unfortunately, so far this value has been left unattended. In addition, the intellectual property rhetoric has hidden the public costs of extreme propertization of the public domain. Rufus Pollock has noted that the current paradigm “binds us to a narrow and erroneous viewpoint in which innovation is central but access is peripheral.”[11]

This imbalance should be redressed. This is far more relevant now because this disproportion between innovation and access prevents us from taking full advantage of the possibilities offered by the digital age. Digitization and Internet distribution have multiplied the potentialities and opportunities offered by the use of public domain material. On one hand, digitization offers the opportunity to extract economic value out of the public domain by benefiting the public with free or inexpensive cultural resources. On the other hand, digitization may produce immense social value by opening society up to immediate and unlimited access to culture and knowledge. In addition, the economic and social value of the public domain is enhanced by the mass production capacities of the digital environment. A new peer-based culture of sharing is changing our cultural landscape through the revolutionary technological ability of multiplying references instantaneously and endlessly. Openness and access fuel this new culture of shared production of knowledge. Commodification and enclosure of the public domain threaten its growth and survival.  

The value of the public domain is a complex variable made up of many components. The public domain is a source of value in both economic and social terms. In addition, value can be extracted from the structural and the functional aspects of the public domain. The contribution of the public domain can be assessed in positive or negative terms by estimating the economic and social loss of enclosure and commodification. The positive value of the public domain can be the effect of direct use, indirect use or reuse of public domain works, the application of public domain business models, its market efficiency triggered by a healthy public domain or, again, the democratic function of the public domain. In any event, social and economic value is always very much tangled up in the assessment of the riches of the public domain.

As per the value of a work entering into the public domain or public domain effect, the revenue value is to be distinguished from the social value, as the economic utility generated for society. If, after entering into the public domain, a work is sold for €5 instead of the €10 charged previously, the social value of the work entering into the public domain will be €5. In addition, the social value of a work entering into the public domain will also include the deadweight loss of restricting access to a good that is spared to society. Finally, the assessment of the value of a work entering into the public domain must also take into account the value of reuse. Reducing the public domain or retarding the entrance of a work into the public domain shall deprive the community of the correspondent social value of developing derivative works or invention from the original cultural artifact. The value of reuse is a dynamic value that boosts society both economically and culturally.

Practice is often more explanatory than theory. A few examples may help to pinpoint the value of the “public domain effect,” the entrance of a work in the public domain, and other social and economic value that can be extracted from the public domain. In 2010, the works of Sigmund Freud entered the public domain in Italy. This event propelled the publication of 36 works of Freud in the first 9 months of 2010 by 10 publishers. This is an astonishing figure if compared with the previous years: from 1999 to 2009, only 16 works of Freud were published in Italy.

Secondly, 2007 saw the end of the copyright protection of the works of Louis Vierne, a renowned French organist and composer. Upon expiration of Vierne’s copyright, new editions of Vierne’s works finally corrected many mistakes and inaccuracies included in the original scores. Louis Vierne was born nearly blind, and such mistakes were obviously due to Vierne's wobbly handwriting. Up to the expiration Vierne’s copyright, none of its publishers tried to correct the mistakes, because the copyright laws prevented them from editing the original works in ant way.

Similarly, the film It’s a Wonderful Life, directed by Frank Capra, fell into the public domain in 1974 after the copyright holder failed to renew it. The film had been largely ignored since its original release. However, in 1975, a television station discovered that the movie was freely available and ran it during the Christmas period, because its climax comes on Christmas Eve. Within a few years It’s a Wonderful Life was being shown on television stations across the United States every Christmas. The success was terrific. Watching the movie at Christmas time became a cultural tradition in the United States and references to the movie also became commonplace.

Together with the value that may be immediately extracted from the entrance of a work into the public domain, a public domain approach to knowledge management may be a source of value on many different levels. Although, a quantitative measurement is impossible, some quantitative conclusions on the value of the public domain can be inferred by examining a few examples of public domain approaches to knowledge production. In general, these examples show the role and the value of the digital public domain in allowing new business models to emerge.

In the case of file sharing, for example, few studies have found significant benefits of free access.[12]  The studies have found that the impact of peer-to-peer file sharing on sales does not seem that relevant. Furthermore, data on the supply of new works seem to support the argument that the advent of file sharing did not discourage creators and creativity at large. In fact, the impact of file sharing on creators may be positive due to the increase of the demand for complements to protected works, such as concerts, special editions, or merchandising.

The value of few other examples of public domain models, as singled out by Rufus Pollock’s study, The Value of the Public Domain, can be more immediately appreciated. Open source software is a quintessential example of the value of an open approach, or functional public domain approach, as the Public Domain Manifesto puts it, to the production of information goods. The Internet and the World Wide Web are further examples of the great wealth that can be built upon public domain material. These technologies were non-proprietary and openness was the key to their revolutionary success. Again, online search engines, such as Google, produce relevant social benefit through their service and generate very large revenue by copying “open” information on the web.

Finally, several studies have highlighted that a public domain approach to weather, geographical data, and public sector information (PSI) in general, may yield a substantial long-run value for Europe, running into the tens of billions or hundreds of billions of euros.[13] The benefit of access to and re-use of public sector information has been widely investigated during the COMMUNIA proceedings by Paul Uhlir, member of the COMMUNIA Advisory Committee, among others.[14] In particular, the 5th COMMUNIA Workshop, co-organized by the Open Knowledge Foundation and London School of Economics, focused on Accessing, Using and Reusing Public Sector Content and Data.

Additionally, the value of privileged and fair use of copyrighted material is also to be taken into account when assessing the overall value of the public domain. Privileged and fair uses of copyrighted material are an integral part of the functional public domain. As a recent study has shown, companies benefiting from fair use and copyright exceptions exceeded GDP, employment, productivity, and export growth of the overall economy.[15] Fair use enhanced industries include manufactures of consumer devices allowing for individual copying of protected content, educational institutions, software developers, and internet search and web hosting providers. The study also reveals that fair use industries have grown dramatically within the past twenty years, since the advent of the Internet and the digital information revolution. These data may help to argue that in the digital environment, open and public domain business models may spur growth at a faster pace than proprietary traditional business models. Promoting fair use and the functional public domain, thus related fair use industry, may also have a considerable added value for Europe.  

When contrasted with the United States case-by-case fair use model, the European list of predefined limitations and exceptions may be a vantage point for fair use industries in Europe. Fair use decisions are inherently complex and unpredictable in the United States. As a consequence of the inherent unpredictability of fair use in the United States, transaction costs will be higher and commercial endeavours will be chronically open to legal challenge. Europe should maximize the advantages that our legal framework offers to industries based on fair use. The enhanced legal certainty and lower transaction costs of the European legal framework will make that sector flourish in Europe and will boost the international investments. However, to that end, Europe needs to advance harmonization of exceptions and limitations across national jurisdictions, and introduce an open fair dealing provision to close any loopholes that predefined exceptions and limitations may have, as sought by COMMUNIA policy Recommendation # 3.

Further, the public domain plays a relevant role in terms of market efficiency. From an economic standpoint, a market with a shrinking public domain would be especially inefficient, as argued by the Nobel laureate Joseph Stiglitz. A market that commodifies information excessively will be less efficient in allocating resources in our society since key information to facilitate that allocation will be more difficult to find.

Finally, as we will better detail later, the public domain is an engine of democratization because it ensures proper access to information for EU citizens regardless of the market power of the players. The value of the public domain as a building block of our capacity of free expression has been immensely enhanced by the ubiquity of the interconnected society and the power of propagation of digitization. Technological advancement makes the public domain the perfect democratic forum.

For the purpose of the COMMUNIA project, digitization and the Internet revolution are an extraordinary opportunity to multiply the value of the public domain and exploit humanities’ riches as never before. Several authors have described the Internet revolution as a monumental shift that we are undergoing. David Bollier, speaker at the 3rd COMMUNIA Conference, notes:

I believe we are moving into a new kind of cultural if not economic reality. We are moving away from a world organized around centralized control, strict intellectual property rights and hierarchies of credentialed experts, to a radically different order. The new order is predicated upon open access, decentralized participation, and cheap and easy sharing.[16]

Digital networks fuel new forms of user-based creative sharing and collaboration. This mass collaboration may stifle social and economic enrichment to a far greater extent than in the past. Yochai Benkler described the high generative capacity of online commons as the “wealth of networks.” The wealth of networks lies in social and networked peer production that is highly generative, because it is modular, granular, and inexpensive to integrate the results. At the 1st COMMUNIA Workshop, Rishab Aiyer Ghosh explored the need to protect and foster open standard in the research community worldwide, to best embrace the collaborative networked projects. Ghosh noted that “our technology future will be based on collaborative, open projects of such large scale that global policies and regulations will become more flexible to meet the needs of every stakeholder involved.”[17] 

A great deal of attention has been paid by COMMUNIA to sharing and networked peer collaboration in education and research, especially at the 2nd and 8th COMMUNIA conference. In particular, at the 2nd COMMUNIA Conference, Jerome H. Reichman, a member of the COMMUNIA advisory Committee, discussed the introduction of a contractually reconstructed commons via the ex ante acceptance of liability rules to promote the exchange of materials in a globally distributed and digitally integrated research commons.[18] At the same COMMUNIA conference, Uhlir proposed a model of open knowledge environments (OKEs) for digitally networked scientific communication. OKEs would “bring the scholarly communication function back into the universities” through “the development of interactive portals focused on knowledge production and on collaborative research and educational opportunities in specific thematic areas.”[19]

However, the revolution is far more massive and distributed than collaboration in education and research. Technological change has brought about cultural change, because the audience has become an active participant in its own culture. Open networks and networked peer collaboration have transformed markets by enabling amateurs to innovate. Individual experimentation, sub-cultures, and a community of social trust have created Linux, Wikipedia, Facebook, YouTube, and major political websites. Flexibility, decentralization, cooperative creation, and customization out-performed corporate bureaucracies unwilling to experiment because it was thought to be too risky and costly. Moreover, new models of decentralized and cooperative creation out-perform theirself, as it is the case for open alternatives to Facebook like the Diaspora project. Faced with Facebook’s centralized nature and desire to control online identities by trampling on privacy norms, the online community has been responding with the emergence of projects and experiments to redress the deficiencies of the Facebook model.

The MusOpen project provides an additional good example of the potential of public domain works when exploited within an open and peer-based project. Musopen is a charity that aims to produce and distribute recordings and sheet music of public domain music. The project allows users to suggest pieces that they would like to have recorded and to pledge funds to pay for the recording. Recently, the project crowdfunded US $70,000 through a KickStarter campaign.

The interactive nature of the web 2.0 has propelled user-generated creativity and defined a peculiar form of digital culture. Remix and mash up are now keywords of the cultural process taking place in the digital environment. Remix culture has emphasized the potential for reuse of public domain material. Open networks, user-generated creativity, and remix culture have made the public domain highly generative. The public domain, once regarded as a “virtual wasteland of undeserving detritus,” has become “a fertile paradise . . . a commons,” David Bollier has noted.

The revolution brought by the web 2.0, and the fertile paradise that the public domain has become, has called for a copyright 2.0. This call is urged, as Professor Ricolfi puts it, by the fact that

the social and technological basis of creation has been radically transformed. The time has come for us to finally become aware that in our post-post-industrial age, the long route which used to lead the work from its creator to the public by passing through different categories of businesses is gradually being replaced by a short route, which puts in direct contact creators and the public.[20]

Copyright 2.0 stands for a relaxed and more flexible set of rules that may adapt to the new mechanics of creative production in the digital age. In particular, copyright 2.0 should serve and pave the way for the “short route” that enhances an unrestrained discourse between authors and the public.

Together with the cultural revolution of networked peer production, the nature of digital information and digitization may also greatly enrich the public domain. Digital information is inexpensive and easy to collect, store, and make available via digital networks. The nature of digital information has propelled the creation of databases of legislative, jurisprudential and governmentally produced material; digital libraries, such as Europeana, Project Gutenberg, Google Books, the Online Books Page, the Hathi Trust Digital Library; digital repositories; scientific libraries of reusable code; databases of scientific and technical information; vast non-profit digital archives of the Internet, such as the Internet Archive; electronic journals; and MP3 files of music posted by bands wanting to attract a new audience.

Again, digital tools such as high performance computers and digitized archives are transforming research in science and scholarship in history, literature and the arts. The human genome project is an example of how computational analysis of digitized data has changed scientific research. The emerging field of digital humanities encompasses a wide range of activities, including online preservation, digital mapping, data mining and the use of geographic information systems. Digital humanities can reveal unexplored patterns and trends by analyzing unprecedented amounts of data.

The digital environment has the potential to make knowledge a truly global public good. As Charles Nesson reminded us at the 3rd COMMUNIA Conference University and Cyberspace: Reshaping Knowledge Institutions for the Networked Age in Turin, the “challenge is how to use this environment to create knowledge.”[21] Human inventiveness has provided us with a ground-breaking solution to underdevelopment, isolation, and cultural and social divide. The open question is whether we, as a society, are up to the task of re-inventing, and challenging our notions of democracy, education, economy, and social interaction.

COMMUNIA maintains that Europe should not be afraid of changing and flourishing. It believes that policy strategies implementing openness in information management are the key to any change that may fully exploit technological advancement. Any actions towards the enclosure of the public domain should be reversed. Outmoded intellectual property models should be re-invented. Again, Ricolfi, reminded us at the 1st COMMUNIA Conference that the time to take up this challenge has come, regardless of how daunting the task may be.

This solicited change is sought to address the many challenges and tensions that the present intellectual property system is presenting to the public domain. The remaining part of this Report will introduce the most relevant of those challenges and tensions. Fuller discussion of that very same topic is included in Annex II of the Report. Later on, Annex III of this Report will lay down the principles that COMMUNIA understands should inspire policy strategies to overcome the challenges, redress the present tensions, and promote the digital public domain.

[11] Rufus Pollock, The Value of the Public Domain 4 (UK Institute for Public Policy Research 2006) [hereinafter Pollok, The Value of the Public Domain].

[12] See, e.g., Felix Oberholzer-Gee and Koleman Strumpf, File-Sharing and Copyright, 10 Innovation Policy and the Economy 19, 34-38 (2010), available at

[13] See Pollok, The Value of the Public Domain, supra note 13, at 14.

[14] Paul Uhlir, Measuring the Economic and Social Benefits and Costs of Public Sector Information Online: a Review of the Literature and Future, presentation delivered at the 1st COMMUNIA Conference, Louvain-la Neuve, Belgium (June 30, 2010)

[15] See Thomas Rogers, Andrew Szamosszegi, and Peter Jaszi, Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use (September 2007) (study prepared for the Computer & Communications Industry Association [CCIA]).

[16] David Bollier, The Commons as New Sector of Value Creation: It’s Time to Recognize and Protect the Distinctive Wealth Generated by Online Commons, Remarks at the Economies of the Commons: Strategies for Sustainable Access and Creative Reuse of Images and Sounds Online Conference (Amsterdam, April 12, 2008), available at

[17] Rishab Aiyer Ghosh, Technology, Law, Policy and the Public Domain, speech delivered at the 1st COMMUNIA Workshop, Turin, Italy (January 18, 2008)

[18] See Jerome H. Reichman, Formalizing the Informal Microbial Commons: Using Liability Rules to Promote the Exchange of Materials, speech delivered at the 2nd COMMUNIA Conference, Turin, Italy (June 30, 2009).

[19] See Paul F. Uhlir, Revolution and Evolution in Scientific Communication: Moving from Restricted Dissemination of Publicly-Funded Knowledge to Open Knowledge Environments, paper presented at the 2nd COMMUNIA Conference, Turin, Italy (June 28, 2009).

[20] Marco Ricolfi, Copyright Policies for Digital Libraries in the Context of the i2010 Strategy, paper presented at the 1st COMMUNIA Conference, Louvain-la-Neuve, Belgium (July 1, 2008), at 12.

[21] Charles Nesson, speech delivered at the 3rd COMMUNIA Conference, Turin (June 28-30, 2010)