Works in the public domain are those whose
intellectual property rights have expired,[1]
been forfeited,[2]
or are inapplicable. Examples include the works of
Shakespeare and
Beethoven, most of the early
silent films, the formulae of
Newtonian physics, and the
patents on
powered flight.[1]
The term is not normally applied to situations when the creator of a
work retains residual rights, in which case use of the work is referred
to as "under license" or with permission.
In informal usage, the public domain consists of works that are
publicly available; while according to the formal definition it consists
of works that are unavailable for
private ownership or are available for public use.[2]
As rights are country-based and vary, a work may be subject to rights in
one country and not in another. Some rights depend on registrations with
a country-by-country basis, and the absence of registration in a
particular country, if required, implies public domain status in that
country.
Public Domain is one of the
Traditional Safety Valves.
History
The term public domain did not come into use until the
mid-17th century, although as a concept "it can be traced back to the
ancient Roman Law, as a preset system included in the property right
system."[3]
The Romans had a large proprietary rights system where they defined
"many things that cannot be privately owned"[3]
as res communes, res publicae and res universitatis.
The term res commune was defined as "things that could be
commonly enjoyed by mankind, such as air, sunlight and ocean."[3]
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.[3]
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 commune, res publicae, and res
universitatis in early Roman Law.[3]
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.[4]
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"[5]
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.[6]
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."[7]
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".[8]
Definition
Newton's own copy of his
Principia, with hand-written corrections for the
second edition
Buddhist monk Geshe Konchog Wangdu reads
Mahayana sutras from an old woodblock copy of the
Tibetan Kanjur.
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.[9]
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".[9]
Patterson and Lindberg described the public domain not as a "territory",
but rather as a concept: "There 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 to use no less
than matter necessary for biological survival."[10]
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".[6]
Value
Pamela Samuelson has identified eight "values" that can arise from
information and works in the public domain.[11]
Possible values include:
- Building blocks for the creation of new knowledge, examples
include data, facts, ideas, theories, and scientific principle.
- Access to cultural heritage through information resources such
as ancient Greek texts and Mozart’s symphonies.
- Promoting education, through the spread of information, ideas,
and scientific principles.
- Enabling follow-on innovation, through for example expired
patents and copyright.
- 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.[12]
- Promoting public health and safety, through information and
scientific principles.
- Promoting the democratic process and values, through news, laws,
regulation, and judicial opinion.
- Enabling competitive imitation, through for example expired
patents and copyright, or publicly disclosed technologies that do
not qualify for patent protection.[11]
Relationship with derivative works
Derivative works include
translations,
musical arrangements, and
dramatizations of a work, as well as other forms of transformation
or adaptation.[13]
Copyrighted works may not be used for derivative works without
permission from the copyright owner,[14]
while public domain works can be freely used for derivative works
without permission.[15][16]
Artworks that are public domain may also be reproduced photographically
or artistically or used as the basis of new, interpretive works.[17]
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.[18]
As of 1999, the plays of Shakespeare, all public domain, had been used
in more than 420 feature-length films.[19]
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.[20][21][22]
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.[15]
Relationship with the information society
According to
Bernt Hugenholtz and
Lucie Guibault, the public domain is under pressure from the
"commodification of information" as items of information that previously
had little or no economic value have acquired independent economic value
in the information age, such as factual data,
personal data,
genetic information, and pure
ideas. The
commodification of information is taking place through
intellectual property law,
contract law, as well as broadcasting and telecommunications law.[23]
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.[24]
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)[25]
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.
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
The expiration of a copyright is more complex than that of a patent.
Historically the
United States has specified terms of a number of years following
creation or publication; this number has been increased several times.
In the U.,S. it usually depends on the U.S. state of where it was
produced and where it will be used. Most other countries specify terms
of a number of years following the death of the last surviving creator;
this number varies from one country to another (50 years and 70 years
are the most common), and has also been increased in many of them. See
List of countries' copyright length. Legal traditions differ on
whether a work in the public domain can have its copyright restored.
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. By contrast, a European Union
directive harmonizing the term of copyright protection was applied
retroactively, restoring and extending the terms of copyright on
material previously in the public domain.
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.[26]
In the United States, when copyrighted material is enacted into the law,
it enters the public domain. Thus, the
building codes, when enacted, are in the public domain.[27]
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."[28]
Patents
Main article:
Term of patent
In most countries the term for patents is 20 years, after which the
invention becomes part of the public domain.
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" is
still a trademark of the German company
Bayer.
Bayer lost the trademark in the United States after World War I, when
the mark was sold to an American firm. So many copy-cat products entered
the marketplace during the war that it was deemed generic just three
years later.[29]
Generic trademarks
Although
Hormel resigned itself to
genericide,[30]
it has fought attempts by other companies to register "spam" as a
trademark in relation to computer products.[31]
Public
domain calculators
Working out if a given work is in or out of copyright can be a
complicated task. Several organisations have created calculators to help
users determine if a work is in copyright.
Europeana have produced a calculator for the
European Union.[32]
Public Domain Sherpa is designed for US copyright law.[33]