Piracy of the Public Domain: How Technology Reverses Ownership of What We Already Own

Technology becomes the new legislator undemocratically as it reshapes access more powerfully than law, because platform policies, such as locking files and algorithmic strikes, operate as shadow laws, making them punitive, unreviewable, and non-negotiable.

Introduction

The modern intellectual property regime was established to combat pirates; however, it imitates the behaviour of the very pirates it condemns and has transitioned from a defensive shield into an offensive weapon. The restriction on lawful access to public domain materials is erasing freedoms that the law has explicitly granted, resulting in private ownership of non-ownable work and the construction of digital walls around content that is legally free for all.¹ In short, the original pirates take without right, and the modern anti-pirates block without right.

“Reverse piracy” is a systematic restoration, restriction, and commercialisation of work that has already entered the public domain. It is unprecedented, as historically, public domain works were previously impossible to enclose; however, as of now the digital system allows for “post-hoc re-privatisation” via three different modes: “technological reverse piracy”, “contractual reverse piracy”, and “algorithmic reverse piracy”. Thus, public domain material, despite being legally public, becomes functionally private,² and the public loses the right to access it via an invisible technological fence.

Technology becomes the new legislator undemocratically as it reshapes access more powerfully than law, because platform policies, such as locking files and algorithmic strikes, operate as shadow laws, making them punitive, unreviewable, and non-negotiable. This creates a displacement of legal authority as technological architecture determines the usage instead of the legal ownership making the controller of the code becomes the controller of culture³ creating a new hierarchy of power where the legislator makes the copyright law, large corporation makes technical rules superseding the law, and the user submits to the corporation rules to access the content ultimately making them the digital tenants to what they already own.

This leads to a de facto abolition of fair use, which now exists only on paper and is impossible to exercise in practice due to mechanisms such as “automated takedowns”, “platform policies”, and “digital rights management (DRM) prohibitions”. Fair use is no longer a right or an accessible tool but a permission contingent on platform tolerance.⁴ Thus, technology-enabled intellectual property (IP) restrictions are no longer about protecting creators but are about reasserting private control over public knowledge.

Turning shared knowledge into digital private property

If taken a step back in time around the “17th-century enclosure movement”, the aristocrats fenced off the communal lands which were previously open for their grazing, survival, and subsistence. Following the idea of “privatisation”, these common lands, which had been acting as shared resources, came under the ambit of exclusive property. Drawing a digital parallel, at present, instead of wooden fences, we now have “algorithmic, DRM, and database fences”,⁵ each functioning as a blockade to the previously open knowledge spaces. Thus, similar to a physical enclosure that strips peasants of their subsistence rights, digital enclosure deprives modern citizens of their information rights.

Currently, large corporations determine who can view, download, share, or modify content, a decision that is often unreviewable and frequently conflicts with statutory rights. These decisions are enforced through codes rather than court proceedings. For instance, a public domain film locked behind a DRM is functionally unavailable, giving the notion that “legal ownership” no longer determines access to such content, thereby making it a technological privilege rather than a legal right. These corporate actors craft practical copyright rules through platform architectures, automated flagging systems, and closed ecosystems that reinterpret the law by design, shifting the power from legislators to engineers and corporate policy designers. To sum up, it is not the law but the infrastructure that autonomously executes rights or restrictions.

Due to this, corporations do not necessarily need to own a work to control it; instead, they only need to control the server on which it sits, the platform that distributes it, and the device that displays it, drawing a separation between legal ownership and functional ownership. Here, the control of the access layer displaces the legal ownership layer,⁶ rewriting who “owns” a work in practice, and eventually resulting in the public becoming a legal owner but a functional outsider, simultaneously nullifying the value of the public domain due to its practical inaccessibility.

To conclude, corporations are on the path of privatising abundance, as public domain works are abundant by design. However, these digital platforms artificially create scarcity through mechanisms such as limited download permissions, forced subscriptions for public materials, and other similar measures. Thus, technology, rather than expanding access, is being used to limit the commons, allowing corporations to harvest profits from resources they never created, rendering the public domain a theoretical construct rather than a lived reality.⁷

Mechanisms of public domain piracy

Modern forces beyond traditional copyright are encroaching on the public domain, where the use of subtle technology and contractual barriers determines what can be accessed, shared, and preserved. These open but hidden controls have shifted the cultural power from the people to corporations, and what now appears free and open is now curtailed by mechanisms few ever notice. The following are the said mechanisms:

1. DRM as a gatekeeper tool

DRM was initially aimed to safeguard copyrighted materials, but it is not applied to works whose rights over the said work have either expired or never existed in the first place. Corporations are known to misuse DRM in sectors such as archival films, classical music recordings, and even digital libraries, thereby limiting access and the redistribution of works that the law has already made available.⁸ Additionally, these restrictions behave like copyright but with no legal foundation, creating an illusion of exclusive rights where the law grants none. This enables corporations to acquire de facto copyright through the codes, rather than through a statute.

2. Licensing overreach

Agreements such as “end-user licence agreements” impose conditions that go beyond what the law establishes. When users access public domain works, they must agree to limitations on redistribution, commercial use, device-based access rules, and prohibitions on modifying the digital file.⁹ This ultimately transforms the public domain works into “conditional access assets”. The corporation treats such public domain contents as if they were proprietary by wrapping them in perpetual, non-negotiable licensing structures. This transforms the public’s cultural heritage into a sustainable revenue stream for private actors.

3. AI-powered gatekeeping

In-house crafted algorithmic moderation, along with automated copyright filters, routinely blocks and demonetises public domain music, films, animation, archival speeches, and historical footage. For instance, social media platforms like YouTube and TikTok have employed AI-based detectors that flag and remove public domain content due to claims by private parties over it.¹⁰ These systems are more or less trained on corporate ownership claims instead of legal categories, which leads to an assumption of plagiarism over public domain content and executes indirect censorship, even when no law has been violated. Thus, algorithmic error consequently transforms into a systemic suppression, which in turn removes content that is legally entitled to be shared by and between the public.

4. Platform capture

Analysing any platform rules, one will find that the private platforms rules are broadly prohibitive, stricter than copyright law, and are enforced automatically and inconsistently, marking them as “platform-level pseudo-laws” that render “fair use” irrelevant.¹¹ These rules control what can be published, determine which content survives and which one disappears, and ultimately shape the cultural memory more effectively than the courts. The platforms do not recognise the rights promised by the law-making citizens informational freedom dependent on them, which ultimately renders public domain content subject to private governance, rather than public law.

India, United States and European Union perspective on fair use under siege

India, unlike the United States, follows a “fair dealing” model, which is laid down under Section 52, Copyright Act, 1957. It lists several protected uses, including private or personal use, research, review, criticism, reporting of current events, and specific educational uses. This closed list nature limits the user’s freedom, making fair dealing a doctrine with a closed-textured nature. Nevertheless, these limited freedoms are also being stifled by tech interventions.

Post the 2012 Amendment to the Copyright Act, it introduced “anti-circumvention rules” through Sections 65-A and 65-B. Additionally, Section 65-A(2) narrowed down the exception to “technological protection measures (TPMs)” circumvention to only act as explicitly permitted by law; however, fair dealing exceptions were not exempted from TPMs circumvention liability. This led to a “statutory designed induced erosion” of user rights, as users are now legally allowed to make snippets for research or criticism, but are not allowed to bypass DRM to do so, making circumvention a criminal offence, even for legitimate fair dealing purposes.

Private platforms, such as YouTube, Meta, and other OTT services, often employ global copyright filters that are not designed to accommodate India’s fair dealing categories, and frequently overblock content that aligns precisely with Section 52. Indian courts, through landmark judgments such as Directorate General of Doordarshan v. Anand Patwardhan¹², have recognised constitutional rights within the interpretation of copyright. These rights are often bypassed by platform terms of service, algorithmic flags, and automated moderation, which showcase the supremacy of private platform rules over the Copyright Act, 1957.

Additionally, in Civic Chandran v. C. Ammini Amma¹³, the Court emphasised the need for “contextual analysis” before any action is taken on the content by the established algorithms. However, the nuances of such judicial systems have become irrelevant in the machine-speed enforcement ecosystem because algorithmic systems cannot comprehend Indian tests of “substantial fairness”, cannot employ the four-factor test occasionally borrowed from United States jurisprudence, and cannot assess transformative purpose. As a result, without parliament ever amending the law, the fair dealing doctrine has been technologically repealed.

Following United States jurisprudence, a tussle has always existed between “fair use” and “automated enforcement”. The United States fair use doctrine, established under 17 USC Section 107¹⁴, is comprehensive and user-friendly. However, Section 1201, Digital Millennium Copyright Act of 1998 (US) prohibits circumvention, even when it is for lawful and fair use. Moreover, landmark cases like Universal v. Corley¹⁵ and 321 Studios¹⁶ confirmed that fair use will not be accepted as a defence to DRM circumvention, creating a contradiction where the court doctrine protects fair use, but digital architecture negates the same.

Moreover, while assessing the European Union jurisprudence, it has adopted a somewhat similar approach to India’s, i.e. a strict copyright model with a closed list of exceptions, along with preventive filtering, as per Article 17 of the 2019 EU Copyright Directive, which requires platforms to install upload filters. However, similar to India, the European Union also faces the same issue where such filters cannot evaluate quotation rights, news reporting exceptions, and parody or pastiche exceptions. This results in the algorithmic suppression of user rights.

Witnessing a combined impact, it can be easily deduced that fair use is recognised in law by the three nations. However, since platforms and TPM systems operate above the judicial enforcement layer, they create private supra-legal structures that apply a “maximum restriction, minimum exception” rule. Law still claims to protect the creation, but due to private actors becoming cross-border copyright adjudicators, it makes the enforcement mechanism global, automated, private, and unappealable. This gave rise to a “global licensing culture” that overrode the rights of any citizen.

Innovative legal and policy remedies

1. The concept of “anti-DRM public domain rights”

As discussed above, the current legal system protects DRM and TPMs, even when applied to public domain content, which creates private reappropriations of what the law has deliberately made available. This now demands the restoration of balance through affirmative public domain protections, i.e. a legal firewall around public domain content. A new concept of “right to unlocked public domain access” could be introduced by amending the relevant provision, which in turn prohibits the application of DRM and TPM to expired copyright works. Additionally, it should permit circumvention without penalty when applied to public domain work and work covered under the “fair use or fair dealing”.

2. Algorithmic transparency and mandatory human review

Corporations often employ copyright filters that operate on opaque systems, which often violate due process norms, principles of natural justice, and free speech doctrines. This necessitates the need for three core elements, namely, a “mandatory explanatory disclosures” requirement, where platforms must publish annual transparency reports, reveal matching thresholds, explain training data sources, and disclose error rates affecting public domain content; a “statutory requirement for human review”, where any automated removal of content cannot be final, and the user, when penalised, can contest and claim a mandatory human review; the attraction of statutory fines, compensation awards to affected users, and public reporting obligations for non-compliance and repeated false claims.

3. Fair use safe havens

As already stated, current platforms override fair use and fair dealing, which leads to platforms acquiring statutory user rights that demand the creation of digital zones where platform policies cannot supersede copyright exceptions. This would mandate fair-dealing zones under the Copyright Act, 1957, where the fair use right must prevail over platform-level restrictions. The establishment of “fair use compliant spaces” would mandate that platforms not block content that falls within judicial fair-use categories, allowing users to host clips, excerpts, and remixes without automatic takedowns.

4. Public domain guardianship authorities

Currently, there is no institutional defender for public domain content. The rights-holders have collective societies, enforcement agencies, and lobbying power; however, the public domain lacks these resources. At the national level, it requires a “National Public Domain Authority” to certify the public domain status of works, publishing unencumbered digital copies, and intervening against false copyright claims. Similarly, for international governance, a “World Intellectual Property Organization (WIPO) Public Domain Commission” is called for. It would ensure that signatories do not allow the privatisation of public domain materials and harmonise global definitions and enforcement standards.

Reimagining public domain for the digital age

As things stand, the public domain serves as a passive legal category, traditionally understood as “work not protected by copyright”, conveying a negative notion of the absence of rights. It implies a vulnerability: If no one owns it, no one actively defends it, allowing private actors to exploit such a vacuum. These public domain resources are comparable to those found in any other national park, water body, or cultural heritage site, and merely declaring them ownerless would be insufficient in a digital environment dominated by proprietary algorithms, closed platforms, TPM/DRM systems, and big tech monopolies. Hence, the public domain must be recognised, preserved, expanded, and enforced as an affirmative right.

Additionally, technological countermeasures are necessary to protect the public domain. Initially, “open DRM standards” need to be developed, which could safeguard the integrity of the content, prevent unauthorised modifications, and not restrict the lawful use of such work. Moreover, a simple idea of “watermarking,” which would be a uniform, cryptographically verifiable mark stating “This work belongs to the public domain”, could be embedded into public domain works. It would protect work from false copyright claims, mislabelling by platforms, and algorithmic misclassification. Lastly, “Blockchain-based Registries” could be created to maintain tamper-proof, globally visible records of works whose copyright has expired, Government works released into the public domain, and cultural materials digitised for public access, ensuring transparency, traceability, and immutable proof.

Finally, present actions should be taken to mitigate future risks, which in this case revolve around the creation of AI-generated monopolies over public domain data. AI modes, such as large language models, generative systems, and dataset aggregators, are trained extensively on public domain texts, images, and recordings. Companies then build proprietary datasets, lock systems behind paywalls, and make claims over exclusive commercial rights on the output. This creates a paradox as the public domain practically fuels the models, and then the model output and parameters become proprietary assets, which are then protected by trade secrets or contract law. It is now necessary to mandate that all AI companies disclose all publicly available sources used for training their systems, release derivative datasets, and prohibit exclusive licensing over their models.

Conclusion

In today’s world, the public domain is not merely a legal category, but also a cultural ecosystem that determines how society creates, how cultures remember, and how democracy educates its citizens. The hardship to safeguard the public domain is not only a legal contest but also a cultural struggle. From the traditional point of view that “pirates copied too much”, it has now become the harsh, inverted reality that actual piracy now constitutes not copying, but the act of preventing copying when copying is lawful. It is now in demand for a new framework of “digital civil rights”, as the internet has shifted the battleground of rights from courts to platforms, from legislatures to algorithms, and from public institutions to private infrastructure. Users now require their digital civil rights, which can safeguard their lawful expression, guarantee access to their work, and prevent private monopolisation of public resources. Moreover, a movement towards digital liberation should be initiated, starting with legal reforms that evolve to safeguard people’s rights continuously. In addition to this, citizens, educators, artists, technologists, and archivists must advocate for open access and challenge any overreach by corporations. To sum it up, in a world where access is furnished by a code rather than a statute public domain is standing at the frontline of digital freedom and it is for our future that we should demand a collective movement for digital civil rights, a legal architecture that protects openness, and a cultural commitment to ensuring that what belongs to everyone remains accessible to everyone.