Author: Ms. Kalyani Mahesh; 23rd June 2026
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.
The public domain consists of works that are no longer protected by copyright, or were never
protected in the first place. These include old books, classical art, government publications,
historical documents, and expired copyrights. The idea is straightforward: in principle, such
works are free for anyone to use, share, adapt, or build upon, without permission or payment.
This matters because it ensures that knowledge does not remain locked up forever. It allows
future generations to learn from the past without paying a toll each time.
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.
The Example: In 2024, the earliest version of Mickey Mouse from the 1928 film Steamboat Willie officially entered the public domain. You can legally print copies of that 1928 comic strip or screen the original cartoon. However, Disney still holds strict trademarks on Mickey Mouse as their corporate brand logo. If you put that 1928 Mickey Mouse on a t-shirt or a video game in a way that makes consumers believe it is an "Official Disney Product," Disney can sue you for trademark infringement, completely bypassing the fact that the cartoon itself is public
domain.
PAYWALLS AND THE DIGITAL ENCLOSURE OF KNOWLEDGE
Access controls and paywalls are digital mechanisms used to restrict access to online content. Websites, academic journals, and databases often require users to pay subscription fees or log in with authorized credentials before viewing material. As a result, resources with clear public value—such as historical archives, academic research, and legal materials—are increasingly placed behind paywalls. Access becomes determined not by entitlement or public interest, but
by purchasing power.
This phenomenon reflects a form of digital enclosure. Knowledge that would traditionally be treated as part of the public commons is increasingly governed by subscription systems. In effect, access to information shifts from a public good to a commodified service, with servers replacing physical fences. While the law may not restrict access to such material, commercial databases and private repositories build virtual fences around them, effectively charging the public a toll to view their own shared heritage.
Border Patrol: The Public Domain Has Borders
Compounding this digital enclosure is the reality that the public domain is not global. The internet has no borders, but copyright laws stop at national lines. Because copyright lifespans vary wildly across the globe (for example, Canada and the EU generally use a 'Life of the author + 70 years' rule, while other nations use +50 or +60 years), a book can be completely free to download for a researcher sitting in one country but downloading that exact same file across a geographic border constitutes copyright piracy. Automated international platforms default to the strictest laws, keeping global knowledge locked to the lowest common denominator. This creates a stark reality: what the law gives with one hand, technology and border fragmentation often take away with the other.
JUDICIAL RESPONSES
Courts have, in several instances, pushed back against the overextension of copyright over public materials. In Georgia v. Public.Resource.Org, the United States Supreme Court held that official legal materials cannot be subject to copyright protection when doing so would restrict public access to the law itself. The judgment reinforces a foundational principle of democratic governance: citizens must have free access to the laws that govern them, and copyright cannot be used to limit that access.
Similarly, in Bridgeman Art Library v. Corel Corp., the court rejected copyright protection for exact photographic reproductions of public domain artworks. It held that mere reproduction of an existing public domain work does not create a new copyrightable interest. This decision is significant because it prevents the reassertion of exclusive control over works that have already entered the public domain. In other words, once a work becomes part of the public domain, it cannot be reclaimed through technical reproduction alone.
The long-running “Happy Birthday to You” litigation further illustrates the consequences of disputed copyright claims. For decades, licensing fees were collected based on contested ownership of the song, until a court ultimately confirmed that it was in the public domain. This outcome highlighted how copyright claims, if left unchallenged, can persist well beyond their legal validity, restricting the use of works that should otherwise be freely available. The judgment restored the song to the public domain, allowing unrestricted use without licensing obligations.
In Lenz v. Universal Music Corp., the court held that copyright holders must consider fair use before issuing a takedown notice under the Digital Millennium Copyright Act (DMCA), introducing a procedural safeguard against automatic removal of potentially lawful content.
However, when digital platforms attempt to expand public access on their own terms, courts often protect traditional commercial models. In the definitive resolution of Hachette Book Group, Inc. v. Internet Archive, the U.S. appellate system permanently shut the window on Controlled Digital Lending (CDL). The U.S. Court of Appeals for the Second Circuit affirmed that scanning a legitimately owned physical book to lend out a one-to-one digital version does not constitute Fair Use but is instead an unauthorized digital reproduction that directly damages commercial e-book licensing networks.
Similarly, global courts are struggling to locate human parameters within software. In the landmark appellate ruling Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. 2025), the U.S. Court of Appeals for the District of Columbia Circuit reinforced a strict judicial consensus: copyright and the public domain remain explicitly human constructs. The court unanimously affirmed the U.S. Copyright Office’s refusal to register an AI-generated artwork, noting that statutory protections—such as ownership rights and inheritance provisions—presuppose a human author with the legal capacity to hold property. By leaving this ruling undisturbed through the denial of certiorari in early 2026, the judicial system confirmed that autonomous machine outputs enter the public commons by default.
Ultimately, these cases demonstrate that fair use is not merely an "exception" added as an afterthought, but a user right inherent within the copyright framework itself. It operates as a built-in limitation on exclusive rights, ensuring that certain uses are permitted from the outset rather than granted later. These decisions are significant. However, they also reveal a persistent structural problem: a favorable judicial outcome does not resolve the practical reality that access may have already been restricted while the dispute on ongoing. While courts systematically shield the boundaries of the public domain from artificial expansion, they remain largely toothless against the private technologies architectures that suppress valid public domain use daily.
WHY TECHNOLOGY IS OUTPACING LEGAL PROTECTIONS
Technology moves instantly. Law does not. Technological measures operate in real time, whereas legal institutions function through procedural safeguards that necessarily take time. A platform can remove content in seconds. An algorithm can restrict access before a page finish loading. A DRM system can block use instantly through code-based controls.
Although legal remedies remain available, delayed adjudication may fail to restore opportunities that have already been lost, rendering legal protection less effective in practice. A person may be entirely in the right and still be deprived of access in the interim. By the time a court intervenes, the practical harm is often irreversible.
The increasing reliance on technological controls raises concerns that legal rights risk becoming theoretical rather than practical, as users are unable to exercise rights that formally continue to exist under the law.
The central challenge is therefore not merely whether the law recognises public rights, but whether individuals can meaningfully exercise those rights in a technology-driven environment. As technological enforcement becomes faster and more pervasive, legal protections struggle to keep pace, creating a widening disconnect between rights recognised in theory and rights enjoyed in practice. That gap between entitlement and exercise is where most users now operate—not in courts, but within the space between law and execution.
The Anti-Circumvention Trap (Paracopyright): Under modern legislation like Section 1201 of the Digital Millennium Copyright Act (DMCA), it is illegal to bypass DRM or anti-piracy encryption software. Crucially, the courts treat breaking a digital lock as a civil or criminal violation even if the text inside that lock is in the public domain. Technology has created a "paracopyright" where the software container itself enjoys absolute legal protection, overriding the public status of the art inside it. Artificial intelligence systems now generate text, images, music, video, and code, sometimes producing outputs that resemble existing copyrighted works. Traditional copyright frameworks were designed around human authorship. AI systems challenge this assumption, creating unresolved questions around authorship, ownership, and liability. As a result, copyright law faces uncertainty in applying human-centred doctrines to machine-generated or machine assisted outputs.
Private Code Replacing Public Statutes: Massive online platforms do not answer to public domain laws; they answer to their own technical architecture and private terms of service. When a platform deploys an automated filter, that filter acts as an extrajudicial executioner. A user cannot easily argue "fair use" or "public domain entry" to a closed algorithm that has already purged their file.
EMERGING CONCERNS
At the same time, artists, authors, and publishers have initiated legal action against AI companies alleging unauthorized use of copyrighted works in training datasets. These disputes have intensified debates around consent, compensation, and the permissible scope of data use under copyright law in the context of machine learning systems.
In practice, however, outcomes are often shaped by platform governance rather than judicial determination. Even where users may have strong legal arguments, content can remain inaccessible or restricted pending prolonged disputes. This effectively shifts decision-making authority over speech, access, and dissemination of content toward private technology companies.
The increasing reliance on automated moderation and platform policies thus raises broader concerns regarding accountability, transparency, and procedural fairness in digital content regulation.
The Erasure of Fair Use: Automated takedown filters have transformed fair use from an accessible user right into a platform-controlled privilege. Because algorithms cannot evaluate context, criticism and scholarship are systematically suppressed under a "shoot first, ask questions later" digital policy.
The "Digital Tenant" Paradigm: The societal shift from media ownership to digital licensing transforms citizens into perpetual tenants. When platforms retain the technological right to alter, delete, or block access to databases at a whim, the public commons is effectively commodified.
AI Training Enclosures: The explosion of generative AI has triggered massive copyright lawsuits regarding whether public data scraping constitutes fair use. This risks a severe polarization: open public domain knowledge is scraped to construct private, commercial corporate tools, leaving the public square starved of free, open data.
CONCLUSION
Copyright law was designed to balance the interests of creators with the interests of the public. However, technological systems such as DRM, automated content filters, content ID mechanisms, and licensing controls increasingly shape how copyright operates in practice. While these tools strengthen enforcement, they also risk limiting access, restricting legitimate uses, and creating uncertainty for end users regarding the scope of their rights.
The public domain was never intended to exist only as a legal abstraction. Its core purpose is to ensure that once copyright protection expires, society is free to access, use, and build upon those works without permission or payment. In the digital environment, however, that promise is often weakened. A work may be legally free yet practically inaccessible. A lawful use may be blocked by software. A public document may remain locked behind subscription systems or platform restrictions. Although courts have consistently affirmed principles such as fair use, public access, and the integrity of the public domain, technological enforcement mechanisms evolve far more rapidly than legal safeguards. If the law recognizes that certain works belong to the public, technological systems should facilitate—rather than frustrate—the public’s ability to access and use them.
The Creator's Survival Guide
In an era where algorithms shoot first and ask questions later, creators cannot simply rely on
the theoretical existence of the public domain. To safely navigate the digital enclosure of
knowledge, creators should look toward Creative Commons (CC) repositories—like
Wikimedia Commons or Project Gutenberg—where works are pre-verified, and permissions
are explicitly stated. Until the law catches up to technology, the golden rule of the digital space
remains: When in doubt, assume it is protected.