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

According to the current copyright statute, in 2018, copyrighted works of music, film, and literature will begin to transition into the public domain. While this will prove a boon for users and creators, it could be disastrous for the owners of these valuable copyrights. Accordingly, the next few years will 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’ cultural and economic value. Although the validity of their assertions turn 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. Data from our research, including a novel human subjects experiment, suggest that the claims about the public domain are suspect. Our data indicate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). In addition, our experimental protocol 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, our data do not suggest any correlation between that valuation and legal status of the underlying work. Accordingly, our  Assistant Professor, Chicago-Kent College of Law; Co-Director, Center on Empirical Studies of Intellectual Property.  Professor of Law, University of Illinois, Urbana-Champaign; Professorial Fellow, Centre for Intellectual Property Policy and Management, Bournemouth University (UK). We wish to thank Emily Barney, Steven Benethen, Jessica Bregant, Kacy King, Bin Li, Megan Nolan, Tyler Slack, and Alex Wilgus for their assistance with researching, recording, designing, and analyzing these studies. We are also grateful to the following people for comments on earlier versions of this paper: Richard Watt and participants at the Canterbury University (Christchurch, NZ) Department of Economics Workshop; Suzy Frankel and the University of Wellington (NZ) School of Law colloquium series; participants at the Conference on Empirical Legal Studies; and participants at the annual meeting of the Society for Economic Research on Copyright Issues.