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The public domain comprises the body of knowledge and innovation (especially creative works such as writing, art, music, and inventions) in relation to which no person or other legal entity can establish or maintain proprietary interests within a particular legal jurisdiction. This body of information and creativity is considered to be part of a common cultural and intellectual heritage, which, in general, anyone may use or exploit, whether for commercial or non-commercial purposes.
If an item ("work") is not in the public domain, this may be the result of a proprietary interest as represented by a copyright or patent. The extent to which members of the public may use or exploit it, in relation to which proprietary interests exist, generally is limited. However, when a work's copyright or patent restrictions expire, it enters the public domain and may be used by anyone for any purpose.
No legal restriction on use
A creative work is said to be in the public domain if there are no laws which restrict its use by the public at large. There may be no laws which establish proprietary rights in relation to the work, or the work or its subject matter may be specifically excluded from existing laws. An item may be public domain in one jurisdiction but not another. For instance some works of literature are public domain in the US but not in the EU.
The underlying idea which is expressed or manifested in the creation of a work generally cannot be the subject of copyright law. Mathematical formulas 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. The Bible and Qur'an, the works of Homer and the inventions of Archimedes are in the public domain. However, copyright may exist in translations or new formulations of these works.
Although "intellectual property" laws are not designed to prevent facts from entering the public domain, collections of facts organized or presented in a creative way, such as categorized lists, may be copyrighted. Collections of data with intuitive organization, such as alphabetized directories like telephone directories, are generally not copyrightable. In some countries copyright-like rights are granted for databases, even those containing mere facts. A sui generis database rights regime is in place in the European Union.
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.
Creative Commons , an organization which promotes the migration of works into the public domain as well as copyleft licensing schemes, holds that:
- Public access to literature, art, music, and film is essential to preserving and building on our cultural heritage. Many of the most important works of American culture have drawn upon the creative potential of the public domain. Frank Capra's It's a Wonderful Life is a classic example of a film that did not enjoy popular success until it entered the public domain. Other icons such as Snow White, Pinocchio, Santa Claus and Uncle Sam grew out of public domain figures.
All copyrights and patents have always had a finite term, though the terms for copyrights and patents differ. When terms expire, the work or invention is released into public domain. In most countries, patents expire 20 years after they are filed. A trademark registration may be renewed and remain in force indefinitely provided the trademark is used, but could otherwise become generic.
Copyrights are more complex than patents; generally, in current law they expire in all countries when all of the following conditions are satisfied:
- The work was created and first published before January 1, 1923, or at least 95 years before January 1 of the current year, whichever is later;
- The last surviving author died at least 70 years before January 1 of the current year;
- No Berne Convention signatory has passed a perpetual copyright on the work; and
- Neither the United States nor the European Union has passed a copyright term extension since these conditions were last updated. (This must be a condition because the exact numbers in the other conditions depend on the state of the law at any given moment.)
These conditions are based on the intersection of United States and European Union copyright law, which most other Berne Convention signatories recognize.
Note that copyright term extension under U.S. tradition usually does not restore copyright to public domain works (hence the 1923 date), but European tradition does because the EU harmonization was based on the copyright term in Germany, which had already been extended to life plus 70.
United States law
In the United States, copyright law has changed several times since the founding of the country. Generally, it is held under Feist Publications v. Rural Telephone Service that Congress does not have the power to re-copyright works that have fallen into the public domain. Eldred v. Ashcroft transcript But re-copyrighting has happened before. "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain, principally by aliens of countries with which we had been at war." (Testimony of Dorothy Schrader, general counsel of the U.S. copyright office, hearing for H.R. 1623, serial 100/50)
Works created by an agency of the United States government are public domain at the moment of creation. Examples are: NASA photographs, military journalism, federal court opinions (but not necessarily state court opinions), congressional committee reports, census data, etc. However, works commissioned by the government but created by a contractor are still subject to copyright, and even in the case of public domain documents, availability of such documents may be limited by laws limiting the spread of classified information.
Before 1978, unpublished works were not covered by the federal copyright act. This does not mean that the works were in the public domain; it means that they were covered under (perpetual) state copyright law. Web sites that claim that "pre-1923 works are safe" are wrong for unpublished works. These works are under federal copyright for at least the life of the author plus seventy years. If they were created before 1978 but first published before 2002, the works have federal copyright protection until 2047.
Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would force an otherwise copyrightable work into the public domain, although for works published between 1978 and 1989, this defect could be cured by registering the work with the Library of Congress within 5 years of publication.
Critics of copyright term extensions have said that Congress has achieved a perpetual copyright term "on the installment plan." Statement of Professor Peter Jaszi, The Copyright Term Extension Act of 1995: Hearing on S.483 Before the Senate Judiciary Comm., 104th Cong.
United Kingdom government works are restricted by either Crown Copyright or Parliamentary Copyright. Published Crown Copyright works become public domain at the end of the year 50 years after they were published, unless the author of the work held copyright and assigned it to the Crown. In that case, the copyright term is the usual life of author plus 70 years. Unpublished Crown Copyright documents become public domain at the end of the year 125 years after they were first created. However, under the legislation that created this rule, and abolished the traditional common law perpetual copyright of unpublished works, no unpublished works will become public domain until 50 years after the legislation came into effect. Since the legislation became law on 1 August 1989, no unpublished works will become public domain under this provision until 2039. Parliamentary Copyright documents become public domain at the end of the year 50 years after they were published. Crown Copyright is waived on some government works provided that certain conditions are met.
Laws of Canada, Australia, and Other Commonwealth Nations
These numbers reflect the most recent extensions of copyright in the United States and Europe. Canada has not, as of 2005, passed similar twenty-year extensions. Consequently, its copyright expiry times are still life of the author plus 50 years. Australia passed a 20-year copyright extension in 2004, but delayed its effect until 2005, and did not make it revive already-expired copyrights. Hence, in Australia works by authors who died before 1955 are still in the public domain.
As a result, works ranging from Peter Pan to the stories of H. P. Lovecraft are public domain in both countries. (The copyright status of Lovecraft's work is debatable, as no copyright renewals, which were necessary under the laws of that time, have been found. Also, two competing parties have independently claimed copyright ownership on his work.)
As with most other Commonwealth of Nations countries, Canada and Australia follow the general lead of the United Kingdom on copyright of government works. Both have a version of Crown Copyright which lasts for 50 years from publication. New Zealand also has Crown Copyright, but has a much greater time length, at 100 years from the date of publication. Ireland also has a fifty year term on government works, although since it is no longer a monarchy, such a copyright is, of course, not called Crown Copyright. India has a government copyright of sixty years from publication, to coincide with its somewhat unusual life of the author plus sixty years term of copyright.
Public Domain and the Internet
The term "public domain" is often poorly understood and has created significant legal controversy. Historically, most parties attempting to address public domain issues fell into two camps:
- Businesses and organizations who could devote staff to resolving legal conflicts through negotiation and the court system.
- Individuals and organizations using materials covered by the fair use doctrine, reducing the need for substantial governmental or corporate resources to track down individual offenders.
With the advent of the Internet, however, it became possible for anybody with access to this worldwide network to "post" copyrighted or otherwise-licensed materials freely and easily. This aggravated an already established but false belief that, if something is available through a free source, it must be public domain. Once such material was available on the net, it could be perfectly copied among thousands or even millions of computers very quickly and essentially without cost.
Freely obtained does not mean free to republish
These factors have reinforced the false notion that "freely obtained" means "public domain". One could argue that the Internet is a publicly-available domain, not licensed or controlled by any individual, company, or government; therefore, everything on the Internet is public domain. This specious argument ignores the fact that licensing rights are not dependent on the means of distribution or consumer acquisition. (If someone gives a person stolen merchandise, it is still stolen, even if the receiving party was not aware of it.) Chasing down copyright violations based on the idea that information is inherently free has become a primary focus of industries whose financial structure is based on their control of the distribution of such media. Though this is legally correct, public support for these companies' efforts is significantly undermined by the belief that they are receiving their "just desserts" for decades of price-gouging for licensed media. Ironically, this puts many creators of such work, like musicians and authors, on both sides of the issue, since they have frequently fought media distributors over inadequate compensation for their work, but depend on distributors' revenues for that compensation.
(Almost) everything written down is copyrighted
Another complication is that publishing exclusively on the Internet has become extremely popular. According to U.S. law, at least, an author's original works are covered by copyright, even without a formal notice incorporated into the work. But such laws were passed at a time when the focus was on materials that could not be as easily and cheaply reproduced as digital media, nor did they comprehend the ultimate impossibility of determining which set of electronic bits is original. Technically, any Internet posting (such as blogs or emails) could be considered copyrighted material unless explicitly stated otherwise.
Furthering the public domain with the Internet
Many people are using the Internet to contribute to the public domain, or make works in the public domain more accessible to more people. For example, Project Gutenberg is coordinating the efforts of people who transcribe works in the public domain into electronic form. Some projects, like that of Verbum Vanum exist for the sole purpose of making material available into the public domain or under no-cost licences.
Note that there are many works that are not part of the public domain, but for which the owner of some proprietary rights has chosen not to enforce those rights, or to grant some subset of those rights to the public.
See, for example, the Free Software Foundation which creates copyrighted software and licenses it without charge to the public for most uses under a class of license called "copyleft", forbidding only proprietary redistribution. Wikipedia does much the same thing with its content under the GNU Free Documentation License.
Sometimes such work is inadvertently referred to as "public domain" in colloquial speech.
Note also that while some works (especially musical works) may be in the public domain, U.S. law considers performances or (some) transcriptions of those works to be derivative works, potentially subject to their own copyrights.
- Fishman, Stephen, The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More. ISBN 0873374339
- Public Domain Definition How and when works enters in the public domain?
- Flowchart to determine Public Domain status of a work in the U.S.
- The mouse that ate the public domain: Disney, The Copyright Term Extension Act, And Eldred v. Ashcroft by Chris Sprigman
- The Public Domain In Copyright Law by Edward Samuels, published in Journal of the Copyright Society (1993)
- The Public Domain Revisited by Edward Samuels, published in the Loyola of Los Angeles Law Review (2002)
- A Politics of Intellectual Property: Environmentalism For the Net? by James Boyle, Professor of Law, Duke, available online (CreativeCommons)
- The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection by Scott M. Martin, Senior VP for Intellectual Property and Associate General Counsel, Paramount Pictures Corporation, published in the Loyola of Los Angeles Law Review (2002)
- MPEG video recordings of panel discussions from the Conference on the Public Domain (2001) panelists include Eben Moglen, Robin Gross and Lawrence Lessig
- Short list of uncopyrightable things in the U.S.
- Summary list of copyright terms in other countries
- OpenFlix Directory of films in the US public domain.
- Donate files to the public domain
- Free Images A blog linking to, and talking about, public domain images on the Web
This is an abridged version of an article which can be found in its complete form at Wikipedia