Romans invented the notion of res publica — things not susceptible to private ownership should be open to civic use. Medieval jurists extended the category to “the air, the seas, the highways.” The first modern copyright act, England’s Statute of Anne of 1710, froze this concept in statute: it granted authors a finite exclusive term (initially 14 years, renewable once) while affirming that the term expired, books would transition into the public domain.
Today, we face an unprecedented expansion of the public domain, a phenomenon that could accelerate innovation if we ensure access to all works and preserve them. Millions of works are set to become available over the coming decade.
Artificial intelligence is a technology that, at its core, enables us to learn fast and deep. The key to unlocking productivity growth from the technology is to invest in learning infrastructures. The public domain may be one of the most undervalued and essential of these infrastructures.
The French Revolution abolished perpetual royal privileges and replaced them with an authorial right that — importantly — “shall lapse … into the public domain at the end of the times fixed by the law” (1793 decree). Across the Atlantic, the US Constitution empowered Congress to secure limited monopolies “to promote the Progress of Science and useful Arts,” embedding the public‑domain reversion as a constitutional prerequisite.
Each expansion (28 years in the 1909 U.S. Act, life + 50 in the Berne Convention) tested that balance. The rise of the Internet intensified the debate. Congress’s 1998 Sonny Bono Act lengthened US terms to life + 70, prompting the landmark Eldred v. Ashcroft (2003) challenge, which, though unsuccessful, framed the public domain as a First Amendment value. Simultaneously, movements such as Creative Commons (2001) and Europe’s Open Data directives reconceived public‑domain status as something creators can proactively choose rather than merely await.
There is a challenge here: we often end up talking about open data, which focuses us on the content of the infrastructure, rather than the commons we need to protect. Instead of thinking about what role governments should have in crafting a public domain that is fit for an AI-powered economy, our perspective needs to shift, opening the door to a number of new policy options suggest themselves.
First, governments should invest in making the public domain accessible. They should invite public-private partnerships to build public domain infrastructure across different domains, ranging from education to the arts. Museums and libraries should play a key role. This infrastructure must be built to withstand the public domain explosion that we are about to witness.
Second, mechanisms for growing the public domain should be reviewed and explored. A shared European commission on the public domain needs to find new mechanisms that will allow copyright holders to donate their works to the public domain. Rules around orphaned works and challenges of their shadow status should be tested.
Third, copyright should be tuned to respond to our shared, collective interest in enabling shared learning and creativity. Low-hanging fruit includes looking at the term copyright and how that can be radically shortened for all or some categories of works. But we should also look at how public funding is connected to the growth of the public domain. This is particularly true for science and scientific publishing. If we conduct science in the public domain, it will maximize social welfare.
Fourth, public service content should be produced under licenses that immediately become public domain content. Archives contain so much interesting and valuable content that could be used for developing new European AI models, and they also include a wealth of different languages.
If we do this right, we stand at the cusp of a massive expansion of our shared intellectual commons. Reinventing the public domain as a core positive value will allow us to learn faster and power economic growth with our shared ideas. The growth of the public domain will encourage new creativity, ideas, and works rather than crowd them out: after all, a lot of culture builds on culture and expands it into new visions.
Europe needs to seize this opportunity. A shared basis for learning can be a key to growth.
Nicklas Lundblad is a non-resident Senior Fellow at the Center for European Policy Analysis. He has spent more than 20 years analyzing, shaping, and debating technology policy, most recently leading Google’s AI subsidiary DeepMind’s work on public policy. His writings can be found at unpredictablepatterns.substack.com.
Bandwidth is CEPA’s online journal dedicated to advancing transatlantic cooperation on tech policy. All opinions expressed on Bandwidth are those of the author alone and may not represent those of the institutions they represent or the Center for European Policy Analysis. CEPA maintains a strict intellectual independence policy across all its projects and publications.
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