The public domain is not only a legal concept, but also a rhetorical device for arguments on the scope and functioning of IPRs in the fields of arts, creativity, and culture. Some argue for a “robust” or “strong” public domain, whereas other voices emphasise the importance of exclusive rights in dissemination of cultural works (Litman in Emory Law Journal 39:965–1023, 1990). However, the public domain is not a uniform entity but rather multidimensional one, and its borders are undergoing continuous change through negotiations where different conflicts of interest are being mitigated. The limits of the public domain are amended to satisfy the needs of cultural markets in response to new technologies and cultural perceptions. Territoriality has been a founding characteristic of the public domain (Dusollier in Scoping study on copyright and related rights and the public domain. World Intellectual Property Organization (WIPO), 2011), but recently, the EU-directive on digital single markets (DSM directive) has established new cornerstones for an emerging European standard for it. One of the arguments on the nature of public domain has concerned intangible cultural heritage (ICH), particularly Indigenous Peoples’ cultural heritage (Oguamanam in The Journal of World Intellectual Property 21:306–325, 2018). The question is whether and to what extent ICH is free for all to use, and how an intangible property that never was protected may have fallen into the public domain (Okediji in Traditional knowledge and the public domain, 2018). These questions are exacerbated in the digital world, which provides unseen possibilities to scale the use and distribution of cultural works. The DSM directive makes an important extension to the European public domain and raises some questions on the digitalisation of ICH as well. The purpose of this brief article is to explore and systematise the grounds of the public domain, its recent development in the European context and its unexpected ramifications on some questions of ICH of Indigenous Peoples. It is argued here that the nature and scope of the public domain should be assessed in the light of sustainable use of ICH, and in practice, it should benefit the stakeholders and guardians of cultural heritage, encourage the dissemination of cultural works, and strengthen those conditions under which the living heritage has emerged in the first place.