Public Domain

 

What’s in the Public Domain?  In casual conversation, the term usually means that information is public or published. But, in copyright terms, the public domain is the foundation of the commons.

Information is part of the public domain for one of two reasons (1) it never qualified for copyright protection – like facts, ideas or methods of operation – or (2) it is a creative work whose copyright has expired (e.g. Mark Twain’s novels). Since all copyrights in the United States expire, every creative work will eventually become part of the public domain.

Creative Commons provides two public domain toolsCC0 and the Public Domain Mark.

CC0

CC0 is a tool that allows a copyright owner to hasten a creative work’s entry into the public domain by permanently and irrevocably giving up copyright in the work. This tool has been used by scientists who want to clear away incidental copyrights that might attach to their data sets and by creators who really do believe that information wants to be free.

The Public Domain Mark

This is just a label.  Unlike all of the other CC tools, which change the terms of use from All Rights Reserved to something more open, this is just a tool to help mark and tag the public domain so that other users can understand the freedoms associated with a marked work.

Caution.  This label should be used only for works that are in the public domain worldwide.

What do you mean?  Well, there is no such thing as an international copyright.  Instead, if you write a novel or take a picture in the United States, you get close to 200 separate copyrights from other countries around the world.  These copyrights last for different lengths of time – in Mexico, for example, the life of the author plus 100 years.  The Public Domain Mark should only be applied when all of these copryights have expired.

Creative Commons does not provide country-specific public domain labels to mark a work that is in the public domain in country A but still under copyright in country B.

This is particularly important in the U.S. context because there are two types of works that are in the public domain in the United States but still under copyright elsewhere:  (1) U.S. Government works and (2) copyrights that were not renewed prior to January 1, 1978 or were published without notice prior to March 1, 1989.

1. U.S. Government works.  U.S. Copyright law specifically says that works created by U.S. Government employees within the scope of their employment – think NASA photos – are in the public domain in the U.S. but can be subjected to copyright by other countries. See 17 U.S.C. § 105. The rules for determining which other countries apply a copyright to U.S. Government works are complex, but it is safe to say that at least some countries do.  Therefore, the Public Domain Mark is not appropriate for U.S. Government works published after some time in the latter part of the 1800s.

2. Formalities.  U.S. Copyright law used to require copyright owners to take affirmative steps to get – and to keep – copyright protection.  Prior to January 1, 1978, copyright lasted for two defined terms, and copyright owners had to renew their copyright with the U.S. Copyright office to get the second term.  Otherwise the work entered the public domain in the United States.

Other countries base the length of copyright on the lifetime of the author plus a defined period of years (at least 50 years and in many 70 years).  Even if a copyright owner did not renew copyright in the U.S., the work was still under copyright in these other countries.  Again, the Public Domain Mark is not appropriate for these types of works if they are still under copyright in these other countries.

Similarly, U.S. Copyright law required that when copies of the work were distributed to the public, these copies had to be marked with an appropriate copyright notice or the work entered the public domain.  This changed on March 1, 1989, and now copyright continues to apply even when no copyright notice © is present. Even if a pre-1989 work lost copyright protection in the United States, copyright still applied in other countries, and the Public Domain Mark is not appropriate for these works.

 Leave a Reply

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

(required)

(required)