Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension

Authors

Christopher Buccafusco, Duke Law SchoolFollow
Paul J. Heald

Document Type

Article

Publication Date

2013

Abstract

According to the current copyright statute, copyrighted works of music, film, and literature will begin to transition into the public domain in 2018. While this will prove a boon for users and creators, it could be disastrous for the owners of these valuable copyrights. Therefore, the next few years will likely witness another round of aggressive lobbying by the film, music, and publishing industries to extend the terms of already-existing works. These industries, and a number of prominent scholars, claim that when works enter the public domain, bad things will happen to them. They worry that works in the public domain will be underused, overused, or tarnished in ways that will undermine the works’ economic and cultural value. Although the validity of their assertions turns on empirically testable hypotheses, very little effort has been made to study them.

This Article attempts to fill that gap by studying the market for audiobook recordings of bestselling novels, a multi-million dollar industry. Data from this study, which includes a novel human-subjects experiment, suggest that term-extension proponents’ claims about the public domain are suspect. Audiobooks made from public domain bestsellers (1913–22) are significantly more available than those made from copyrighted bestsellers (1923–32). In addition, the experimental evidence suggests that professionally made recordings of public domain and copyrighted books are of similar quality. Finally, while a low quality recording seems to lower a listener’s valuation of the underlying work, the data do not suggest any correlation between that valuation and the legal status of the underlying work. Accordingly, this research indicates that the significant costs of additional copyright protection for already-existing works may not be justified. These findings will be relevant to the inevitable congressional and judicial debate over copyright term extension in the next few years.

Citation

Christopher Buccafusco & Paul J. Heald, Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension, 28 Berkeley Technology Law Journal 1-43 (2013)