A Defense of the Public Domain: A Scholarly Essay

Laura N. Gasaway, University of North Carolina School of Law

Abstract

Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain in the United States. Some librarians have asked if vigorous application of fair use cannot substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court's finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed for authors to place their works in the public domain.

A revised version of this paper appears in Law Library Journal, Vol. 101, No. 4 (Fall 2009), pp. 451-470 (http://www.aallnet.org/products/pub_llj_v101n04/2009-25.pdf)