Introduction
The “Public Domain” is the repository of our shared cultural heritage. It is a commons comprising works free from copyright restrictions, available for unrestricted use, reproduction and transformation by the public. Ideally, the digital revolution should have served as the ultimate catalyst for the public domain, reducing the costs of distribution and access to near zero.[1] However, a paradox has emerged: while technology allows for the infinite reproduction of public domain works, it also provides the tools to enclose them. This phenomenon, often described as the “piracy of the public domain” or “copyfraud,” involves the use of Technology Enabled IP Restrictions (TEIPR) and Digital Rights Management (DRM) to re-monopolize works that belong to the public. This study analyses how the intersection of digital locks and “paracopyright” laws is erasing fair use rights and creating a system of private enclosure over public goods.
2. COPYFRAUD AND THE FALSE CLAIM OF OWNERSHIP.
The term “copyfraud” was coined by legal scholar Jason Mazzone to describe the rampant practice of falsely claiming copyright ownership over public domain materials.[1] In the United States, while the Copyright Act imposes severe penalties for infringing valid copyrights, it offers virtually no remedy for entities that falsely assert copyright over public domain works.
In earlier times, copyfraud was limited by physical realities. A publisher might claim copyright over a reprint of a Shakespeare play, but they could not physically prevent a reader from typing out the text and redistributing it. In the digital age, however, these false claims are enforced by code. When a digital library or archive places a public domain manuscript behind a “digital lock” or wraps it in a restrictive “click-wrap” license, they are effectively using contract law and technology to override the Copyright Act. As Mazzone argues, these entities are not creating new property rights but are stealing from the public domain by creating artificial scarcity.[2]
3. PARACOPYRIGHT: THE SUPREMACY OF SECTION 1201.
The mechanism that gives TEIPR its legal teeth is the concept of “paracopyright,” specifically the anti-circumvention provisions found in Section 1201 of the Digital Millennium Copyright Act (DMCA). This statute makes it illegal to circumvent technological measures that control access to a copyrighted work. Crucially, the courts and the statute have created a disconnect between “copyright infringement” and “circumvention.”[1]
Even if a work is in the public domain, if it is wrapped in a digital envelope that also contains copyrightable software or interface code, breaking the lock to access the public domain content can be construed as a violation of the DMCA. This creates a ‘legalized monopoly’ where the technology itself, rather than the creative work, dictates the rights of the user. Moreover, while international treaties (such as the WIPO Copyright Treaty) intended to protect authors from piracy, they have inadvertently empowered rights holders to eliminate ‘fair use’ by making access conditional on accepting restrictive terms.
4. Case Study.
A primary arena for this technological piracy is the GLAM sector (Galleries, Libraries, Archives, and Museums). In the landmark case Bridgeman Art Library, Ltd. v. Corel Corp.,[1] the court held that exact photographic reproductions of two-dimensional public domain artworks are not entitled to copyright protection because they lack originality.
Despite this clear legal precedent, many major museums continue to assert copyright over high-resolution digital scans of public domain masterpieces. They enforce this through TEIPR: high-resolution images are kept behind paywalls or password-protected databases. If a scholar bypasses these technical measures to use a public domain image of the Mona Lisa for a lecture (a classic fair use scenario), they risk liability not for copyright infringement (which does not exist), but for breach of contract or violating the Computer Fraud and Abuse Act. This practice effectively privatizes the visual history of humanity, turning public property into a revenue stream for private institutions.[2]
5. THE EROSION OF FAIR USE THROUGH ALGORITHMIC ENFORCEMENT.
Fair use is a dynamic, context-sensitive legal doctrine that allows for the use of copyrighted material for purposes such as criticism, comment, news reporting, teaching and research.[1] However, TEIPR systems are binary; a digital lock does not understand context. It either grants access or denies it.[2]
When public domain works are encumbered by DRM (such as public domain books sold on proprietary e-reader platforms) users lose the ability to exercise fair use rights, such as format-shifting, text-mining or preservation. For example, a researcher cannot legally break the encryption on an e-book to perform computational analysis on a 19th-century text if the file is DRM-protected. The technology treats the user as a potential pirate rather than a citizen with rights to the content. This shift from “law-based regulation” to “code-based regulation” means that fair use is theoretically available but technologically impossible.
[1] Copyright Act, 17 U.S.C. § 107.
[2] Supra note 3.
6. CONCLUSION.
The piracy of the public domain represents a failure of copyright policy to adapt to the digital reality. By allowing rights holders to use TEIPR to enclose the commons, the legal system has permitted the creation of perpetual monopolies that the Constitution explicitly sought to prevent. To restore the balance, legal reforms must be introduced to penalize copyfraud and to create broad statutory exemptions that allow the circumvention of digital locks when accessing public domain works. Without such intervention, the public domain risks becoming a theoretical concept, accessible only to those who can afford to pay the tollkeepers of technology.
[1] https://publicdomainreview.org/what-is-the-public-domain/.
[1] https://law.illinois.edu/faculty-research/faculty-profiles/jason-mazzone/.
https://ogc.harvard.edu/pages/copyright-and-fair-use.
[1] Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).
[1] https://douglasmccarthy.com/2025/04/museums-and-the-digital-enclosure-of-the-public-domain/.
[1] Copyright Act, 17 U.S.C. § 107.
[1] Supra note 3.
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Sweety Tuli is a legal content writer at Legallands.com, specializing in corporate advisory, legal research, and strategic business compliance. Her work focuses on simplifying complex legal concepts for entrepreneurs, investors, and professionals navigating multi-jurisdictional frameworks, particularly across India and the UAE.
With a keen understanding of corporate law, regulatory affairs, and policy reforms, Sweety contributes insightful analyses on topics such as company formation, CEPA-driven trade policies, taxation frameworks, intellectual property, and digital compliance.
She is passionate about bridging the gap between legal interpretation and business practicality—helping organizations align their operations with legal governance, ethical standards, and global best practices.
Through her articles at LEGALLANDS LLP, Sweety aims to make legal knowledge more accessible, strategic, and actionable for businesses operating in a rapidly evolving regulatory environment.
