Public domain

Works in the public domain are those whose exclusive intellectual property rights have expired,^[1] have been forfeited,^[2] or are inapplicable.^[3] For example, the works of Shakespeare and Beethoven, and most of the early silent films, are all now in the public domain by either being created before copyrights existed or leaving the copyright term.^[1] Examples for works not covered by copyright which are therefore in the public domain, are the formulae of Newtonian physics, cooking recipes^[4] and all software before 1974.^[5] Examples for works actively dedicated into public domain by their authors are reference implementations of cryptographic algorithms,^[6][7][8] NIH's ImageJ,^[9] and the CIA's The World Factbook.^[10] The term 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 are country-based and vary, 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, creates public domain status for a work in that country.

History

Although the term "public domain" did not come into use until the mid-18th century, the concept "can be traced back to the ancient Roman Law, as a preset system included in the property right system."^[11] The Romans had a large proprietary rights system where they defined "many things that cannot be privately owned"^[11] as res nullius, res communes, res publicae and res universitatis. The term res nullius was defined as things not yet appropriated.^[12] The term res communes was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean."^[11] The term res publicae referred to things that were shared by all citizens, and the term res universitatis meant things that were owned by the municipalities of Rome.^[11] When looking at the public domain from a historical perspective, one could say the construction of the idea of "public domain" sprouted from the concepts of res communes, res publicae, and res universitatis in early Roman law.^[11]

When the first early copyright law was first 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.^[13]

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 the public domain"^[14] 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.^[15] 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."^[16] Because copyright law is different from country to country, Pamela Samuelson has described the public domain as being "different sizes at different times in different countries".^[17]

Definition

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.^[18] According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private 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 comes from Lange, who focused on what the public domain should be: "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".^[18] Patterson and Lindberg described the public domain 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."^[19] The term public domain may also be interchangeably used with other imprecise and/or undefined terms such as the "public sphere" or "commons", including concepts such as "commons of the mind", the "intellectual commons", and the "information commons".^[15]

Value

Pamela Samuelson has identified eight "values" that can arise from information and works in the public domain.^[20]:22

Possible values include:

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.^[21]
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.^[20]:22

Relationship with derivative works

L.H.O.O.Q. (1919). Derivative work by the Dadaist Marcel Duchamp based on the Mona Lisa.

Derivative works include translations, musical arrangements, and dramatizations of a work, as well as other forms of transformation or adaptation.^[22] Copyrighted works may not be used for derivative works without permission from the copyright owner,^[23] while public domain works can be freely used for derivative works without permission.^[24][25] Artworks that are public domain may also be reproduced photographically or artistically or used as the basis of new, interpretive works.^[26] 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 1987.^[27] By 1999, the plays of Shakespeare, all public domain, had been used in more than 420 feature-length films.^[28] 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 Tromeo and Juliet.^[29][30][31] Marcel Duchamp's L.H.O.O.Q. is a derivative of Leonardo da Vinci's Mona Lisa, one of thousands of derivative works based on the public domain painting.^[24]

Perpetual copyright

Some works may never fully lapse into the public domain. A perpetual crown copyright is held for the Authorized King James Version of the Bible in the UK.^[32] While the copyright of the play Peter Pan, or the Boy Who Wouldn't Grow Up by J. M. Barrie has expired in the United Kingdom, it was granted a special exception under the Copyright, Designs, and Patents Act 1988 (Schedule 6)^[33] that requires royalties to be paid for performances within the UK, so long as Great Ormond Street Hospital (to whom Barrie gave the rights) continues to exist.

Public domain mark

Creative Commons' Public Domain Mark

The 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.^[34][35] The copyright mark is analogous to the copyright symbol, which acts as copyright notice. The Europeana databases uses it, and for instance on the Wikimedia Commons on February 2016 2.9 million works (~10% of all works) are listed as PDM.^[36]

Application to copyrightable works

Works not covered by copyright law

The underlying idea that is expressed or manifested 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, but copyright may exist in translations or new formulations of these works.

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 20th century from a fixed-term based on first publication, with a possible renewal term, to a term extending to fifty, then seventy, years after the death of the author. The claim that "pre-1923 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. (See List of countries' copyright length.)

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 U.S. 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—a situation described as odd by some scholars, and unfair by some US-based rightsholders.^[37]

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.^[38] In the United States, when copyrighted material is enacted into the law, it enters the public domain. Thus, e.g., the building codes, when enacted, are in the public domain.^[39] They may also be in the public domain in other countries as well. "It is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work."^[40]

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 notice.^[41][42] Also not all legal systems have processes for reliably donating works to the public domain, e.g. Civil law of continental Europe. This may even effectively prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights.^[43]

Public domain like licenses

An alternative is for copyright holders to issue a licence 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 ("Permission culture"). There are multiple licenses which aim release works into the public domain. In 2000 the WTFPL was released as public domain like software license.^[44] In 2009 the Creative commons released the CC0, which was created for compatibility with also law domains which don't have the concept of dedicating into public domain. This is achieved by a public domain waiver statement and a fall-back all-permissive license, for the case the waiver is not possible.^[45][46] The Unlicense, published around 2010, has a focus on an Anti-copyright message. The unlicense offers a public domain waiver text with a fall-back public domain-like license inspired by permissive licenses but without attribution.^[47][48]

In October 2014 the Open Knowledge Foundation recommends the Creative Commons CC0 license to dedicate content to the public domain,^[49][50] and the Open Data Commons Public Domain Dedication and License (PDDL) for data.^[51]

Patents

In most countries the term or 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 twenty years from the date of filing within the United States or twenty years from the earliest date of filing if under 35 USC 120, 121, or 365(c).^[52] However, the text and any illustration within a patent, provided the illustrations are essentially line drawings and do not in any substantive way reflect the "personality" of the person drawing them, are not subject to copyright protection.^[53] This is separate from the patent rights just mentioned.

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 upper case A, is still a trademark of the German company Bayer, while aspirin, with a lower case "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 copy-cat products entered the marketplace during the war that it was deemed generic just three years later.^[54]

Bayer also lost the trademark for "Heroin", which it trademarked a year before it trademarked Aspirin.

Although Hormel resigned itself to genericide,^[55] it has fought attempts by other companies to register "spam" as a trademark in relation to computer products.^[56]

Public Domain Day

An English logo of the 2015/2016 Public Domain Day in Poland

Public Domain Day is an observance of when copyrights expire and works enter into the public domain.^[57] This legal transition of copyright works into the public domain usually happens every year on 1 January based on the individual copyright laws of each country.^[57]

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),^[58] with support for the idea echoed by Lawrence Lessig.^[59] As of 1 January 2010 a Public Domain Day website lists the authors whose works are entering the public domain.^[60] There are activities in countries around the world by various organizations all under the banner Public Domain Day.

See also

• Berne Convention
• Center for the Study of the Public Domain
• Copyfraud
• Copyleft
• Copyright status of work by the U.S. government
• Copyright Term Extension Act
• Creative Commons
• Eldred v. Ashcroft
• Fair dealing
• Free software
• Freedom of panorama
• Limitations and exceptions to copyright
• List of countries' copyright length
• List of films in the public domain in the United States
• Millar v Taylor
• Orphan works
• Public Domain Day
• Public Domain Enhancement Act
• Public domain film
• Public domain image resources
• Public domain in the United States
• Public domain music
• Public domain software
• Rule of the shorter term

References

1. Boyle, Jnu ble Zdrf pacanaiames (2008). The Public Domain: Enclosing the Commons of the Mind. CSPD. p. 38. ISBN 978-0-300-13740-8.
2. Graber, Christoph B.; Nenova, Mira B. (2008). Intellectual Property and Traditional Cultural Expressions in a Digital Environment. Edward Elgar Publishing. p. 173. ISBN 978-1-84720-921-4.
3. unprotected on bitlaw.com
4. Copyright Protection Not Available for Names, Titles, or Short Phrases on copyright.gov "Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable."
5. Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 34 "computer programs, to the extent that they embody an author's original creation, are proper subject matter of copyright."
6. SERPENT - A Candidate Block Cipher for the Advanced Encryption Standard "Serpent is now completely in the public domain, and we impose no restrictions on its use. This was announced on the 21st August at the First AES Candidate Conference." (1999)
7. KeccakReferenceAndOptimized-3.2.zip mainReference.c "The Keccak sponge function, designed by Guido Bertoni, Joan , Michaël Peeters and Gilles Van Assche. For more information, feedback or questions, please refer to our website: http://keccak.noekeon.org/Implementation by the designers, hereby denoted as "the implementer". To the extent possible under law, the implementer has waived all copyright and related or neighboring rights to the source code in this file. http://creativecommons.org/publicdomain/zero/1.0/"
8. skein_NIST_CD_121508.zip on skein-hash.info, skein.c "Implementation of the Skein hash function. Source code author: Doug Whiting, 2008. This algorithm and source code is released to the public domain."
9. disclaimer on rsb.info.nih.gov
10. contributor_copyright on cia.gov "The World Factbook is prepared by the Central Intelligence Agency for the use of US Government officials,[...] The Factbook is in the public domain"
11. Huang, H. (2009). "On public domain in copyright law". Frontiers of Law in China 4 (2): 178–195. doi:10.1007/s11463-009-0011-6.
12. Rose, C Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age (Winter 2003) Law and Contemporary Problems 89 at p.5, p.4
13. Torremans, Paul (2007). Copyright law: a handbook of contemporary research. Edward Elgar Publishing. pp. 134–135. ISBN 978-1-84542-487-9.
14. Torremans, Paul (2007). Copyright law: a handbook of contemporary research. Edward Elgar Publishing. p. 154. ISBN 978-1-84542-487-9.
15. Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 103. ISBN 978-1-84542-282-0.
16. Torremans, Paul (2007). Copyright law: a handbook of contemporary research. Edward Elgar Publishing. p. 137. ISBN 978-1-84542-487-9.
17. Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 102. ISBN 978-1-84542-282-0.
18. Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 104. ISBN 978-1-84542-282-0.
19. Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 105. ISBN 978-1-84542-282-0.
20. Guibault, Lucy; Bernt Hugenholtz (2006). The future of the public domain: identifying the commons in information law. Kluwer Law International. ISBN 9789041124357.
21. Perry&Margoni (2010). "From music tracks to Google maps: who owns Computer Generated Works?". Computer Law and Security Review. Retrieved 7 September 2011.
22. Stern, Prof Richard H. (2001). "L.H.O.O.Q. Internet related Derivative Works". Supplemental material Computer Law 484. The George Washington University Law School. Retrieved 23 May 2010.
23. Leaffer, Marshall A. (1995). Understanding copyright law. Legal text series; Contemporary Casebook Series (2nd ed.). M. Bender. p. 46. ISBN 0-256-16448-7.
24. Introduction to intellectual property: theory and practice. Wold Intellectual Property Organisation, Kluwer Law International. 1997. p. 313. ISBN 978-90-411-0938-5.
25. Fishman, Stephen (September 2008). The copyright handbook: what every writer needs to know. Nolo. p. 178. ISBN 978-1-4133-0893-8. Retrieved 1 June 2010.
26. Fishman, Stephen (2008). Public domain: how to find and use copyright-free writings, music, art and more. Nolo. pp. 124–125. ISBN 978-1-4133-0858-7.
27. Lundin, Anne H. (2 August 2004). Constructing the canon of children's literature: beyond library walls and ivory towers. Routledge. p. 138. ISBN 978-0-8153-3841-3. Retrieved 1 June 2010.
28. Young, Mark (ed.). The Guinness Book of Records 1999, Bantam Books, 358; Voigts-Virchow, Eckartm (2004), Janespotting and Beyond: British Heritage Retrovisions Since the Mid-1990s, Gunter Narr Verlag, 92.
29. Homan, Sidney (2004). Directing Shakespeare: a scholar onstage. Ohio University Press. p. 101. ISBN 978-0-8214-1550-4. Retrieved 1 June 2010.
30. Kossak, Saskia (2005). "Frame my face to all occasions": Shakespeare's Richard III on screen. Braumüller. p. 17. ISBN 978-3-7003-1492-9. Retrieved 1 June 2010.
31. Cartmell, Deborah; Imelda Whelehan (2007). The Cambridge companion to literature on screen. Cambridge University Press. p. 69. ISBN 978-0-521-61486-3. Retrieved 1 June 2010.
32. Metzger, Bruce M. (2006). The Oxford companion to the Bible. Oxford: Oxford Univ. Press. p. 618. ISBN 978-0195046458.
33. "Copyright, Designs and Patents Act 1988 (c. 48)". Office of Public Sector Information. 1988. p. 28. Retrieved 2 September 2008.
34. "Creative Commons announces the Public Domain Mark". The H Open (The H). 2010-10-12. Retrieved 2010-10-12.
35. Diane Peters (2010-10-11). "Improving Access to the Public Domain: the Public Domain Mark". Creative Commons. Retrieved 2010-10-12.
36. Category:CC-PD-Mark on February 2016
37. Dennis Karjala, "Judicial Oversight of Copyright Legislation", 35 N. Ky. L. Rev. 253 (2008).
38. Copyright Office Basics
39. "Veeck v. Southern Building Code Congress Int'l, Inc./Opinion of the Court – Wikisource". en.wikisource.org. Retrieved 15 March 2012.
40. Nimmer, Melville B., and David Nimmer (1997). Nimmer on Copyright, section 13.03(F)(4). Albany: Matthew Bender.
41. publicdomain on cornell.edu
42. Copyright Notice, U.S. Copyright Office Circular 3, 2008.
43. "About CC0 — "No Rights Reserved"". Creative Commons. Retrieved 23 April 2013.
44. Version 1.0 license on anonscm.debian.org
45. https://creativecommons.org/weblog/2009/03/11/13304
46. Validity of the Creative Commons Zero 1.0 Universal Public Domain Dedication and its usability for bibliographic metadata from the perspective of German Copyright Law by Dr. Till Kreutzer, attorney-at-law in Berlin, Germany
47. the-unlicense-a-license-for-no-license on ostatic.com by Joe Brockmeier (2010)
48. The Unlicense on unlicense.org
49. licenses on opendefinition.com
50. Creative Commons 4.0 BY and BY-SA licenses approved conformant with the Open Definition by Timothy Vollmer on creativecommons.org (27 December 2013)
51. pddl on opendatacommons.org
52. Manual of Patent Examining Procedure available at http://www.uspto.gov/web/offices/pac/mpep/s2701.html
53. Copyright and Trademark Issues RE: Materials from USPTO Website
54. Aspirin, World of Molecules
55. "SPAM® Brand and the Internet". Hormel Foods. Archived from the original on 17 January 2012.
56. Kieren McCarthy (31 January 2005). "Hormel Spam trademark case canned". Retrieved 2 September 2008.
57. Richmond, Shane (2010-01-01). "Happy Public Domain Day! Here's to many more – Telegraph Blogs". Blogs.telegraph.co.uk. Retrieved 2011-12-24.
58. Happy Public Domain Day!, Wallace J.McLean, 1 January 2004.
59. Lessig, Lawrence (2004-01-01). "public domain day - in Canada (Lessig Blog)". Lessig.org. Retrieved 2011-12-25.
60. Public Domain Day 2010 at MetaFilter establishes the existence of the website at the time.

External links

• Public Domain Review
• Center for the Study of the Public Domain, Duke University