Public domain

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The public domain consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable.

For example, the works of William Shakespeare and Edgar Allan Poe are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired. Some works, such as those created by the government, are not covered by copyright, and are therefore automatically in the public domain; others may be actively dedicated by their authors to the public domain. As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another.

The value of the public domain is that it promotes cultural, social, and economic development through making available data, facts, ideas, theories, and scientific principles, as well as providing public access to cultural heritage.

Definition

The public domain consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired,[1] been forfeited,[2] expressly waived, or may be inapplicable.[3]

Newton's own copy of his Principia, with hand-written corrections for the second edition

Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law.[4] According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property. However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership.[1]

A conceptual definition which focuses on what the public domain should be is as follows: "it should be a place of sanctuary for individual creative expression, a sanctuary conferring affirmative protection against the forces of private appropriation that threatened such expression."[4] On the other hand, the public domain can be understood not as a "territory," but rather as a concept:

[T]here are certain materials – the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers – not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival.[4]

As examples, the works of William Shakespeare, Ludwig van Beethoven, and Edgar Allan Poe, are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired.[1] Some works are not covered by copyright, and are therefore in the public domain—among them the formulae of Newtonian physics, cooking recipes, titles, [5] and all computer software created prior to 1974.[6] Other works are actively dedicated by their authors to the public domain; some examples include reference implementations of cryptographic algorithms, the image-processing software ImageJ (created by the National Institutes of Health),[7] and the CIA's The World Factbook.[8] The term public domain is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission."

As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country.

History

Although the term domain did not come into use until the mid-eighteenth century, the concept can be traced back to the ancient Roman Law, "as a preset system included in the property right system."[9] The Romans had a large proprietary rights system where they defined "many things that cannot be privately owned" as res nullius, res communes, res publicae and res universitatis.[9] The term res nullius was defined as things not yet appropriated.[10] The term res communes was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean"; res publicae referred to things that were shared by all citizens; and res universitatis meant things that were owned by the municipalities of Rome.[9]

When the first early copyright law was originally established in Britain with the Statute of Anne in 1710, public domain did not appear. However, similar concepts were developed by British and French jurists in the eighteenth century. Instead of "public domain," they used terms such as publici juris or propriété publique to describe works that were not covered by copyright law.[11]

The phrase "fall in the public domain" can be traced to mid-nineteenth century France to describe the end of copyright term. The French poet Alfred de Vigny equated the expiration of copyright with a work falling "into the sink hole of public domain"[11] and if the public domain receives any attention from intellectual property lawyers it is still treated as little more than that which is left when intellectual property rights, such as copyright, patents, and trademarks, expire or are abandoned.[4] In this historical context Paul Torremans describes copyright as a, "little coral reef of private right jutting up from the ocean of the public domain."[11] Copyright law differs by country, and the American legal scholar Pamela Samuelson has described the public domain as being "different sizes at different times in different countries."[4]

Value

The presence of a robust public domain is essential for cultural, social, and economic development.[12]

The value of the public domain includes:

  1. Building blocks for the creation of new knowledge, examples include data, facts, ideas, theories, and scientific principle.
  2. Access to cultural heritage through information resources such as ancient Greek texts and Mozart's symphonies.
  3. Promoting education, through the spread of information, ideas, and scientific principles.
  4. Enabling follow-on innovation, through for example expired patents and copyright.
  5. Enabling low cost access to information without the need to locate the owner or negotiate rights clearance and pay royalties, through for example expired copyrighted works or patents, and non-original data compilation.
  6. Promoting public health and safety, through information and scientific principles.
  7. Promoting the democratic process and values, through news, laws, regulation, and judicial opinion.
  8. Enabling competitive imitation, through for example expired patents and copyright, or publicly disclosed technologies that do not qualify for patent protection.[12]

Public domain by medium

Public domain books

A public-domain book is a book with no copyright, a book that was created without a license, or a book where its copyrights expired[1] or have been forfeited.[2]

In most countries the term of protection of copyright expires on the first day of January, 70 years after the death of the latest living author. The longest copyright term is in Mexico, which has life plus 100 years for all deaths since July 1928.

A notable exception is the United States, where every book and tale published prior to 1925 is in the public domain; American copyrights last for 95 years for books originally published between 1925 and 1978 if the copyright was properly registered and maintained.[13]

For example, the works of Jane Austen, Lewis Carroll, Machado de Assis, Olavo Bilac, and Edgar Allan Poe are in the public domain worldwide as they all died over 100 years ago.

Project Gutenberg makes tens of thousands of public domain books available online as ebooks.

Public domain music

People have been creating music for millennia. Guido of Arezzo introduced the currently used musical notation system in the tenth century.[14] This laid the foundation for the preservation of global music in the public domain, a distinction formalized alongside copyright systems in the seventeenth century. Musicians copyrighted their publications of musical notation as literary writings, but performing copyrighted pieces and creating derivative works were not restricted by early copyright laws. Copying was widespread, in compliance with the law, but expansions of those laws intended to benefit literary works and responding to commercial music recording technology's reproducibility led to stricter rules.

US copyright laws distinguish between musical compositions and sound recordings, the former of which refers to melody, notation, and/or lyrics created by a composer and/or lyricist, including sheet music, while the latter refers to a recording performed by an artist, including a CD, LP, or digital sound file.[15] Musical compositions fall under the same general rules as other works, and anything published prior to 1925 is considered public domain. Sound recordings, on the other hand, are subject to different rules and are not eligible for public domain status until 2021–2067, depending on the date and location of publishing, unless explicitly released beforehand.[13]

Public domain films

A public-domain film is a film that was never under copyright, was released to public domain by its author, or has had its copyright expired.

In the United States, motion pictures are copyrighted for 95 years. All copyrightable works made by United States government employees as part of their official duties are in the public domain from their creation.

Relationship with derivative works

Derivative works include translations, musical arrangements, and dramatizations of a work, as well as other forms of transformation or adaptation. Copyrighted works may not be used for derivative works without permission from the copyright owner,[16] while public domain works can be freely used for derivative works without permission.[17][18] Artworks that are public domain may also be reproduced photographically or artistically or used as the basis of new, interpretive works.[19] Works derived from public domain works can be copyrighted.[20]

Once works enter into the public domain, derivative works such as adaptations in book and film may increase noticeably, as happened with Frances Hodgson Burnett's novel The Secret Garden, which became public domain in the US in 1977 and most of the rest of the world in 1995.[21] By 1999, the plays of Shakespeare, all public domain, had been used in more than 420 feature-length films.[22] In addition to straightforward adaptation, they have been used as the launching point for transformative retellings such as Tom Stoppard's Rosencrantz and Guildenstern Are Dead and Troma Entertainment's Romeo and Juliet.[23]

Perpetual copyright

Some works may never fully lapse into the public domain. For example, a perpetual crown copyright is held for the Authorized King James Version of the Bible in the UK.[24]

While the copyright has expired for the Peter Pan works by J. M. Barrie (the play Peter Pan, or the Boy Who Wouldn't Grow Up and the novel Peter and Wendy) in the United Kingdom, it was granted a special exception under the Copyright, Designs, and Patents Act 1988 (Schedule 6) that requires royalties to be paid for commercial performances, publications, and broadcasts of the story of Peter Pan within the UK, as long as Great Ormond Street Hospital (to whom Barrie gave the copyright) continues to exist.[25]

In a paying public domain regime, works that have entered the public domain after their copyright has expired, or traditional knowledge and traditional cultural expressions that have never been subject to copyright, are still subject to royalties payable to the state or to an authors' association. The user does not have to seek permission to copy, present or perform the work, but does have to pay the fee. The principle is that revenue from the work of long-dead artists should be used to support creativity of living artists. Paying public domain regimes have been introduced and withdrawn in several countries. They are still in place in several countries in South America and Africa.

Creative Commons' Public Domain Mark

Public domain mark

Creative Commons proposed in 2010 the Public Domain Mark (PDM) as symbol to indicate that a work is free of known copyright restrictions and therefore in the public domain.[26][27] The public domain mark is a combination of the copyright symbol, which acts as copyright notice, with the international no symbol.

Application to copyrightable works

Works not covered by copyright law

The underlying idea that is expressed in the creation of a work generally cannot be the subject of copyright law (see idea–expression divide). Mathematical formulae will therefore generally form part of the public domain, to the extent that their expression in the form of software is not covered by copyright.

Works created before the existence of copyright and patent laws also form part of the public domain. For example, the Bible and the inventions of Archimedes are in the public domain. However, translations or new formulations of these works may be copyrighted.

Expiration of copyright

Determination of whether a copyright has expired depends on an examination of the copyright in its source country.

In the United States, determining whether a work has entered the public domain or is still under copyright can be quite complex, primarily because copyright terms have been extended multiple times and in different ways—shifting over the course of the twentieth century from a fixed-term based on first publication, with a possible renewal term, to a term extending to 50, then 70, years after the death of the author. The claim that "pre-1925 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years.

In most other countries that are signatories to the Berne Convention, copyright term is based on the life of the author, and extends to 50 or 70 years beyond the death of the author.

Legal traditions differ on whether a work in the public domain can have its copyright restored. In the European Union, the Copyright Duration Directive was applied retroactively, restoring and extending the terms of copyright on material previously in the public domain. Term extensions by the US and Australia generally have not removed works from the public domain, but rather delayed the addition of works to it. However, the United States moved away from that tradition with the Uruguay Round Agreements Act, which removed from the public domain many foreign-sourced works that had previously not been in copyright in the US for failure to comply with US-based formalities requirements. Consequently, in the US, foreign-sourced works and US-sourced works are now treated differently, with foreign-sourced works remaining under copyright regardless of compliance with formalities, while domestically-sourced works may be in the public domain if they failed to comply with then-existing formalities requirements.

Government works

Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries.[28] They may also be in the public domain in other countries as well.

Dedicating works to the public domain

Release without copyright notice

Before 1988 in the US, works could be easily given into the public domain by just releasing it without an explicit Copyright notice. With the Berne Convention Implementation Act of 1988 (and the earlier Copyright Act of 1976, which went into effect in 1978), all works were by default copyright protected and needed to be actively given into public domain by a waiver statement/anti-copyright can call notice.[29] Not all legal systems have processes for reliably donating works to the public domain. This may even "effectively prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights."[30]

Public-domain-like licenses

An alternative is for copyright holders to issue a license which irrevocably grants as many rights as possible to the general public. Real public domain makes licenses unnecessary, as no owner/author is required to grant permission. There are multiple licenses which aim to release works into the public domain.[31]

Other types of intellectual property

Patents

Main article: Patent

In most countries, the term of rights for patents is 20 years, after which the invention becomes part of the public domain. In the United States, the contents of patents are considered valid and enforceable for 20 years from the date of filing within the United States or 20 years from the earliest date of filing if under 35 USC 120, 121, or 365(c).[32] In most patent laws, annuities or maintenance fees have to be regularly paid in order to keep the patent in force. Thus, a patent may lapse before its term if a renewal fee is not paid in due time.

Trademarks

A trademark registration may remain in force indefinitely, or expire without specific regard to its age. For a trademark registration to remain valid, the owner must continue to use it. In some circumstances, such as disuse, failure to assert trademark rights, or common usage by the public without regard for its intended use, it could become generic, and therefore part of the public domain.

Because trademarks are registered with governments, some countries or trademark registries may recognize a mark, while others may have determined that it is generic and not allowable as a trademark in that registry. For example, the drug acetylsalicylic acid (2-acetoxybenzoic acid) is better known as aspirin in the United States—a generic term. In Canada, however, Aspirin, with an uppercase A, is still a trademark of the German company Bayer, while aspirin, with a lowercase "a", is not. Bayer lost the trademark in the United States, the UK, and France after World War I, as part of the Treaty of Versailles. So many copycat products entered the marketplace during the war that it was deemed generic just three years later.[33]

Public Domain Day

Public Domain Day is an observance of when copyrights expire and works enter into the public domain. This legal transition of copyright works into the public domain usually happens every year on January 1, based on the individual copyright laws of each country.

The observance of a "Public Domain Day" was initially informal; the earliest known mention was in 2004 by Wallace McLean (a Canadian public domain activist).[34] Several websites list the authors whose works are entering the public domain each January 1. There are activities in countries around the world by various organizations all under the banner Public Domain Day.[35]

Notes

  1. 1.0 1.1 1.2 1.3 James Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008, ISBN 978-0300137408).
  2. 2.0 2.1 Christoph Beat Graber and Mira Burri-Nenova (eds.), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Pub., 2008, ISBN 978-1847209214).
  3. Daniel A. Tysver, Works Unprotected by Copyright Law Retrieved October 23, 2020.
  4. 4.0 4.1 4.2 4.3 4.4 Ronan Deazley, Rethinking Copyright: History, Theory, Language (Edward Elgar Pub., 2006, ISBN 978-1845422820).
  5. Works Not Protected by Copyright, Circular 33 U.S. Copyright Office, September 2017. Retrieved October 8, 2020.
  6. Mark A. Lemley, Peter S. Menell, Robert P. Merges, Pamela Samuelson, and Brian W. Carver, Software and Internet Law (Aspen Publishers, 2011, ISBN 978-0735589155).
  7. ImageJ Disclaiemer Retrieved October 23, 2020.
  8. Copyright and Contributors The World Factbook. Retrieved October 23, 2020.
  9. 9.0 9.1 9.2 Hui Huang, On public domain in copyright law Frontiers of Law in China 4(2) (2009):178–195. Retrieved October 23, 2020.
  10. Carol M. Rose, Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age Law and Contemporary Problems 66 (Winter 2003): 89-110. Retrieved October 23, 2020.
  11. 11.0 11.1 11.2 Paul Torremans, Copyright Law: A Handbook of Contemporary Research (Edward Elgar Publishing, 2008, ISBN 978-1845424879).
  12. 12.0 12.1 Lucie M.C.R. Guibault, The Future of Public Domain: Identifying the Commons in Information Law (Kluwer Law International, 2006, ISBN 978-9041124357).
  13. 13.0 13.1 Copyright Term and the Public Domain in the United States Copyright Information Center, Cornell University Library. Retrieved October 23, 2020.
  14. Guido of Arezzo Catholic Encylopedia. Retrieved October 23, 2020.
  15. Copyright Registration of Musical Compositions and Sound Recordings United States Copyright Office, July, 2020. Retrieved October 23, 2020.
  16. Marshall A. Leaffer, Understanding Copyright Law (Lexis Nexis Matthew Bender, 1995, ISBN 978-0256164480).
  17. World Intellectual Property Organization, Introduction to Intellectual Property: Theory and Practice (Wolters Kluwer, 2017, ISBN 978-9041160935).
  18. Stephen Fishman, The Copyright Handbook: What Every Writer Needs to Know (NOLO, 2017, ISBN 978-1413324266).
  19. Stephen Fishman, The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More (NOLO, 2020, ISBN 978-1413327564).
  20. Rich Stim, Public Domain Works That Are Modified Public Domain Trouble Spots. Retrieved October 25, 2020.
  21. Anne Lundin, Constructing the Canon of Children's Literature: Beyond Library Walls and Ivory Towers (Routledge, 2004, ISBN 978-0815338413).
  22. Angelo Steccanella, Janespotting and Beyond (Gunter Narr Verlag, 2004, ISBN 978-3823360964).
  23. Sidney Homan, Directing Shakespeare (Ohio University Press, 2004, ISBN 978-0821415504).
  24. Bruce M. Metzger and Michael David Coogan (eds.), The Oxford Companion to the Bible (Oxford University Press, 1993, ISBN 978-0195046458).
  25. Copyright, Designs and Patents Act 1988 (c. 48) Office of Public Sector Information, 1988. Retrieved October 25, 2020.
  26. Creative Commons announces the Public Domain Mark The H Open, October 12, 2010. Retrieved October 25, 2020.
  27. Diane Peters, Improving Access to the Public Domain: the Public Domain Mark Creative Commons, October 11, 2010. Retrieved October 25, 2020.
  28. Copyright Basics United States Copyright Office. Retrieved October 25, 2020.
  29. Copyright Notice United States Copyright Office. Retrieved October 25, 2020.
  30. No Rights Reserved Creative Commons. Retrieved October 25, 2020.
  31. Open Definition: Conformant Licenses Open Knowledge Foundation. Retrieved October 25, 2020.
  32. Nature of Patent and Patent Rights United States Patent and Trademark Office (USPTO). Retrieved October 25, 2020.
  33. Aspirin Molecule World of Molecules. Retrieved October 25, 2020.
  34. Wallace J. McLean, Happy Public Domain Day! January 1, 2004. Retrieved October 19, 2020.
  35. Jennifer Jenkins, Public Domain Day 2020 Center for the Study of the Public Domain. Retrieved October 19, 2020.

References

  • Boyle, James. The Public Domain: Enclosing the Commons of the Mind. Yale University Press, 2008. ISBN 978-0300137408
  • Deazley, Ronan. Rethinking Copyright: History, Theory, Language. Edward Elgar Pub., 2006. ISBN 978-1845422820
  • Fishman, Stephen. The Copyright Handbook: What Every Writer Needs to Know. NOLO, 2017. ISBN 978-1413324266
  • Graber, Christoph Beat, and Mira Burri-Nenova (eds.). Intellectual Property and Traditional Cultural Expressions in a Digital Environment. Edward Elgar Pub., 2008. ISBN 978-1847209214
  • Guibault, Lucie M.C.R. The Future of Public Domain: Identifying the Commons in Information Law. Kluwer Law International, 2006. ISBN 978-9041124357
  • Homan, Sidney. Directing Shakespeare. Ohio University Press, 2004. ISBN 978-0821415504
  • Leaffer, Marshall A. Understanding Copyright Law. Lexis Nexis Matthew Bender, 1995. ISBN 978-0256164480
  • Lemley, Mark A., Peter S. Menell, Robert P. Merges, Pamela Samuelson, and Brian W. Carver. Software and Internet Law. Aspen Publishers, 2011. ISBN 978-0735589155
  • Lundin, Anne. Constructing the Canon of Children's Literature: Beyond Library Walls and Ivory Towers. Routledge, 2004. ISBN 978-0815338413
  • Metzger, Bruce M., and Michael David Coogan (eds.). The Oxford Companion to the Bible. Oxford University Press, 1993. ISBN 978-0195046458
  • Steccanella, Angelo. Janespotting and Beyond. Gunter Narr Verlag, 2004. ISBN 978-3823360964
  • Torremans, Paul. Copyright Law: A Handbook of Contemporary Research. Edward Elgar Publishing, 2008. ISBN 978-1845424879
  • World Intellectual Property Organization. Introduction to Intellectual Property: Theory and Practice. Wolters Kluwer, 2017. ISBN 978-9041160935)

External links

All links retrieved October 25, 2020.

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