ABSTRACT

The public domain operates on a fundamental promise: once statutory copyright protection expires, a creative work belongs to everyone. Similarly, exemptions like fair use or fair dealing are designed to carve out protected public spaces for education, research, criticism, and reporting. Together, these legal pillars are intended to keep human knowledge accessible. In the modern digital landscape, however, private technological frameworks systematically erode these public rights. This article examines the growing friction between statutory entitlements and private digital architectures, including Digital Rights Management (DRM), restrictive platform licensing agreements, and automated content-filtering algorithms. By analyzing recent judicial precedents and the structural asymmetries between slow-moving legislation and instantaneous software execution, this paper highlights the emergence of a "Digital enclosure."

We argue that preserving the public commons is no longer merely a task of legal recognition. Rather, it requires active intervention to ensure that technological enforcement and platform- imposed restrictions do not quietly hollow out statutory freedoms, transforming true informational ownership into a state of conditional platform tenancy. 

INTRODUCTION

Imagine using a video containing a few seconds of music for a college presentation or a film review, only to find it removed within minutes by an automated copyright system. Although the law may permit certain uses through doctrines such as fair use or fair dealing, technology often acts before legality is assessed. This growing tension between technological enforcement and public rights has become one of the defining challenges of copyright law in the digital age. 

makes them possible, not because the law requires them. 

locked, even if a search engine makes it visible to the world. 

TECHNOLOGY-ENABLED RESTRICTIONS ON PUBLIC RIGHTS

Practical Impact on Digital Users

Users in the digital space must navigate copyright with care, as technology does not always distinguish between lawful and unlawful use. Content is generally safe when it is in the public domain, licensed for reuse, or clearly released under royalty-free terms. However, online platforms increasingly rely on automated detection systems that may flag, restrict, or remove content without assessing context. This creates a practical challenge where lawful uses may still be blocked due to algorithmic enforcement, reinforcing the broader tension between copyright law and user rights in the digital age. 

For ordinary users, determining whether digital content can be safely used has become increasingly complex. While copyright law recognizes exceptions such as fair use and fair dealing, automated systems do not evaluate legal context. As a result, content that may be legally permissible can still be restricted in practice.

This is not merely theoretical. In 2025, YouTube processed approximately 2.5 billion copyrights claims through its Content ID system, the vast majority of which were generated automatically rather than through human review.1 At this scale, enforcement becomes primarily algorithmic, raising a fundamental question: can automated systems reliably distinguish between infringement and lawful uses such as criticism, commentary, education, or parody? 

Digital Libraries and Access Disputes
The tension between public access and copyright enforcement is also evident in disputes involving digital libraries. The Internet Archive, for instance, sought to expand access to books in digital form, particularly during periods when physical access was limited. Publishers challenged this practice, arguing that it infringed copyright, and courts ultimately ruled against the Archive in the landmark case Hachette Book Group, Inc. v. Internet Archive. The court ruled that the Archive’s system did not qualify as Fair Use but was instead an unauthorized digital reproduction that harmed the commercial publishers' e-book markets. This dispute highlighted the ongoing conflict between expanding public access to knowledge and protecting the economic interests of copyright holders. 

Law vs Technology in Practice

Copyright law grants creators’ exclusive rights, but it also preserves public rights such as fair use, access to public domain works, research, education, criticism, and commentary. However, technology can interfere with the exercise of these rights in practice. In effect, law may permit a use, while technology prevents it.
Digital Rights Management (DRM) is one of the clearest examples of this divide. DRM refers to technological protection measures applied to digital content to control how it is used. For example, Kindle books may restrict copying or printing, streaming platforms may prevent downloading, and digital music files may limit transfer across devices.
While DRM is often justified as an anti-piracy mechanism, it does not distinguish between unlawful infringement and lawful use. As a result, users may be prevented from exercising rights that copyright law would otherwise allow. Although copyright law provides exceptions and limitations, DRM can effectively override them in practice, extending control beyond what the law originally intended. 

The Matryoshka Doll: Hidden Layers of Copyright 

might open the outer layer and find a completely different owner inside. 

The Audio Trap

The sheet music and lyrics to Beethoven’s Symphony No. 9 are over 200 years old and firmly in the public domain. Anyone can legally play them. However, if you use a digital recording of that symphony performed by the London Symphony Orchestra in 2020 in your video, you will face an instant copyright strike. The composition is free, but the specific sound recording has a brand-new copyright. 

The Restoration Pitfalls 

Automated Enforcement System

Platform such as YouTube also rely heavily on automated takedown systems. When copyrighted material is detected, content may be removed, blocked or monetized by the rights holder. However, these systems often fail to account for context. Content such as criticized, review, educational material. or parody may legally include copyrighted excepts yet still be flagged or removed automatically. 

As a result, lawful expression may be suppressed before human review occurs. This raise concerns not only that about copyright enforcement, but also about freedom of expression and access to information.

Licensing and Platform Control 

A further layer of restriction arises from licensing agreements. Most users do not fully read platform terms of service, yet these agreements often impose restrictions that go beyond copyright law. By accepting access, users agree to contractual terms that may prohibit copying, sharing, printing, transferring, or modifying content, even in situations where copyright law would normally permit such uses under exceptions like fair use. 

Over time, this shifts control over information from public law to private contractual arrangements.  Users may unknowingly relinquish certain practical rights simply by agreeing to access digital content.

Free Ownership to Access

This shift is most visible in the transition from ownership to licensed access. Traditionally, purchasing a physical book meant acquiring ownership of that copy, including the ability to keep, lend, or sell it. In contrast, digital content is typically accessed under a license rather than owned outright. 

Closed ecosystems such as kindle or streaming platforms illustrate this shift clearly. Users may feel as though they own the content, but in reality, they retain access only as long as the platforms permits. The transaction is completed, but control remains with the provider. 

The Trademark Trap: Free Art vs. Locked Brands

Even when a creative work completely runs out its copyright clock and enters the public domain, creators can still run into legal brick wall called Trademark Law. Copyright is designed to protect artistic expression for a limited time. Trademark is designed to protect brand identity indefinitely so consumers aren't confused about who made a product.