Defining the public domain in economic terms – approaches and consequences for policy

Stimulating innovation and growth in the so-called ‘creative economy’ is a current policy objective for national regulators. One policy lever that can be applied to the creative sector is intellectual property. For example, regulators may alter the scope or term of protection offered by copyright law. Increased copyright protection limits the size of the public domain by restricting access to and use of cultural expressions. Opposition to expansion and further enclosure of the cultural public domain was previously articulated in terms of access to a commons of information. Following the Hargreaves Review of Intellectual Property in 2011, copyright reform in the UK context has been increasingly framed in terms of economic policy objectives. This paper reviews two economic approaches which shape how researchers and policymakers discuss the public domain in debates about IP reform: an economic welfare approach which weighs increases in producer and consumer surplus under different policy configurations and an economics of innovation approach which considers the value of the public domain as a reservoir of ideas for innovators and firms. I argue that economic definitions of the public domain should be augmented by a consideration of the democratic requirements of freedom of expression and access to information. The consequences of this re-figuration of the public domain for the public interest and access to information are discussed