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- If you came here for help with tagging Wikimedia Commons files as public domain, see Help:Public domain
Works are in the
public domain if the
intellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all. Examples include the
English languageEnglish is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
, the formulae of Newtonian physics, the works of Shakespeare and
BeethovenLudwig van Beethoven was a German composer and pianist. A crucial figure in the transition between the Classical and Romantic eras in Western art music, he remains one of the most famous and influential composers of all time.Born in Bonn, then the capital of the Electorate of Cologne and part of...
, and the patents on
powered flightPowered flight is flight achieved using onboard power to generate propulsive thrust and/or lift. Birds and insects use wings, in a variety of ways, to achieve powered flight. Man has developed several forms of powered aircraft. The term powered flight is also sometimes used excluding the natural...
.
In a general context, public domain may refer to ideas, information, and works that are "publicly available", but in the context of intellectual property law (which includes
copyrightCopyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, patents, and trademarks), public domain refers to works, ideas, and information which are intangible to private ownership and/or which are available for use by members of the public.
History of public domain
Public domain did not come to fruition as a term 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.” The Romans had a large proprietary rights system where they defined “many things that cannot be privately owned” 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.” 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. When looking at 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.
When the first early copyright law was first established in Britain with the
Statute of AnneThe Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
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.
The phrase "fall in the public domain" can be traced to mid-nineteenth century France to describe the end of
copyright termCopyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
. The French poet
Alfred de VignyAlfred Victor de Vigny was a French poet, playwright, and novelist.-Life:Alfred de Vigny was born in Loches into an aristocratic family...
equated the expiration of copyright with a work falling "into the sink hole of the public domain" 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
copyrightCopyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, patents, and trademarks, expire or are abandoned. 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." Because copyright law is different from country to country,
Pamela SamuelsonPamela Samuelson is the Richard M. Sherman '74 Distinguished Professor of Law and Information Management at the University of California, Berkeley with a joint appointment in the UC Berkeley School of Information and Boalt Hall, the School of Law. She was appointed Visiting Professor of Law at...
has described the public domain as being "different sizes at different times in different countries".
Defining the public domain
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. According to
James BoyleJames Boyle is a Scottish legal academic who is currently the William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke University School of Law in Durham, North Carolina....
this definition underlines common usage of the term
public domain and equates the public domain to
public propertyPublic property is property, which is dedicated to the use of the public. It is a subset of state property. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership...
and works in copyright to
private propertyPrivate property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
. 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 useFair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
rights and limitation on ownership. 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". 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." The term public domain may also be interchangeably used with other imprecise and/or undefined terms such as the "
public sphereThe public sphere is an area in social life where individuals can come together to freely discuss and identify societal problems, and through that discussion influence political action...
" or "commons", including concepts such as "commons of the mind", the "intellectual commons", and the "information commons".
Value of the public domain
In attempting to map the public domain
Pamela SamuelsonPamela Samuelson is the Richard M. Sherman '74 Distinguished Professor of Law and Information Management at the University of California, Berkeley with a joint appointment in the UC Berkeley School of Information and Boalt Hall, the School of Law. She was appointed Visiting Professor of Law at...
has identified eight "values" that can arise from information and works in the public domain, though not every idea or work that is in the public domain necessarily has a value. 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.
- 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.
Public domain and derivative works
Derivative works include
translationsTranslations is a three-act play by Irish playwright Brian Friel written in 1980. It is set in Baile Beag , a small village at the heart of 19th century agricultural Ireland...
, 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, while public domain works can be freely used for derivative works without permission. Artworks that are public domain may also be reproduced photographically or artistically or used as the basis of new, interpretive works. Once works enter into the public domain, derivative works such as adaptations in book and film may increase noticeably, as happened with
Frances Hodgson BurnettFrances Eliza Hodgson Burnett was an English playwright and author. She is best known for her children's stories, in particular The Secret Garden , A Little Princess, and Little Lord Fauntleroy.Born Frances Eliza Hodgson, she lived in Cheetham Hill, Manchester...
's novel
The Secret GardenThe Secret Garden is a novel by Frances Hodgson Burnett. It was initially published in serial format starting in the autumn of 1910, and was first published in its entirety in 1911. It is now one of Burnett's most popular novels, and is considered to be a classic of English children's...
, which became public domain in 1987. As of 1999, the plays of Shakespeare, all public domain, had been used in more than 420 feature-length films. In addition to straightforward adaptation, they have been used as the launching point for transformative retellings such as
Tom StoppardSir Tom Stoppard OM, CBE, FRSL is a British playwright, knighted in 1997. He has written prolifically for TV, radio, film and stage, finding prominence with plays such as Arcadia, The Coast of Utopia, Every Good Boy Deserves Favour, Professional Foul, The Real Thing, and Rosencrantz and...
's
Rosencrantz and Guildenstern Are Dead and
Troma EntertainmentTroma Entertainment is an American independent film production and distribution company founded by Lloyd Kaufman and Michael Herz in 1974.The company produces low-budget independent movies that play on 1950s horror with elements of farce...
's
Tromeo and JulietTromeo and Juliet is a 1996 independent transgressive comedy film adaptation of William Shakespeare's Romeo & Juliet from Troma Entertainment...
.
Marcel DuchampMarcel Duchamp was a French artist whose work is most often associated with the Dadaist and Surrealist movements. Considered by some to be one of the most important artists of the 20th century, Duchamp's output influenced the development of post-World War I Western art...
's
L.H.O.O.Q.L.H.O.O.Q. is a work of art by Marcel Duchamp first conceived in 1919. The work is one of what Duchamp referred to as readymades, or more specifically an assisted ready-made...
is a derivative of
Leonardo Da VinciLeonardo di ser Piero da Vinci was an Italian Renaissance polymath: painter, sculptor, architect, musician, scientist, mathematician, engineer, inventor, anatomist, geologist, cartographer, botanist and writer whose genius, perhaps more than that of any other figure, epitomized the Renaissance...
's
Mona LisaMona Lisa is a portrait by the Italian artist Leonardo da Vinci. It is a painting in oil on a poplar panel, completed circa 1503–1519...
, one of thousands of derivative works based on the public domain painting.
Public domain in 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
ideaIn the most narrow sense, an idea is just whatever is before the mind when one thinks. Very often, ideas are construed as representational images; i.e. images of some object. In other contexts, ideas are taken to be concepts, although abstract concepts do not necessarily appear as images...
s. The commodification of information is taking place through
intellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
law, contract law, as well as broadcasting and telecommunications law.
Perpetual copyright
Some works may never fully lapse into the public domain. A perpetual
crown copyrightCrown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown .- Australia :...
is held for the Authorized King James Version of the Bible in the UK. While the copyright of the play
Peter Pan, or the Boy Who Wouldn't Grow Up by
J. M. BarrieSir James Matthew Barrie, 1st Baronet, OM was a Scottish author and dramatist, best remembered today as the creator of Peter Pan. The child of a family of small-town weavers, he was educated in Scotland. He moved to London, where he developed a career as a novelist and playwright...
has expired 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 performances within the UK, so long as
Great Ormond Street HospitalGreat Ormond Street Hospital for Children is a children's hospital located in London, United Kingdom...
(to whom Barrie gave the rights) continues to exist.
Works not covered by copyright law
The underlying
ideaIn the most narrow sense, an idea is just whatever is before the mind when one thinks. Very often, ideas are construed as representational images; i.e. images of some object. In other contexts, ideas are taken to be concepts, although abstract concepts do not necessarily appear as images...
that is expressed or manifested in the creation of a work generally cannot be the subject of copyright law (see
idea-expression divideThe idea–expression divide or idea–expression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.The case of Baker v. Selden was the first U.S...
). 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
ArchimedesArchimedes of Syracuse was a Greek mathematician, physicist, engineer, inventor, and astronomer. Although few details of his life are known, he is regarded as one of the leading scientists in classical antiquity. Among his advances in physics are the foundations of hydrostatics, statics and an...
are in the public domain, but copyright may exist in
translationTranslation is the communication of the meaning of a source-language text by means of an equivalent target-language text. Whereas interpreting undoubtedly antedates writing, translation began only after the appearance of written literature; there exist partial translations of the Sumerian Epic of...
s 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 StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
has specified terms of a number of years following creation or publication; this number has been increased several times. 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 protectionCouncil Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome...
was applied retroactively, restoring and extending the terms of copyright on material previously in the public domain.
Government work
Works of the United States GovernmentA work of the United States government, as defined by United States copyright law, is "a work prepared by an officer or employee of the U.S. government as part of that person's official duties." The term only applies to the work of the federal government, including the governments of "non-organized...
and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries. 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. 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."
Public domain in patents
In most countries the term for patents is 20 years, after which the invention becomes part of the public domain.
Public domain in trademarks
A
trademarkA trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
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
genericA genericized trademark is a trademark or brand name that has become the colloquial or generic description for, or synonymous with, a general class of product or service, rather than as an indicator of source or affiliation as intended by the trademark's holder...
, 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
aspirinAspirin , also known as acetylsalicylic acid , is a salicylate drug, often used as an analgesic to relieve minor aches and pains, as an antipyretic to reduce fever, and as an anti-inflammatory medication. It was discovered by Arthur Eichengrun, a chemist with the German company Bayer...
in the United States—a generic term. In Canada, however, "aspirin" is still a trademark of the German company
BayerBayer AG is a chemical and pharmaceutical company founded in Barmen , Germany in 1863. It is headquartered in Leverkusen, North Rhine-Westphalia, Germany and well known for its original brand of aspirin.-History:...
. Bayer lost the trademark 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.
Generic trademarks
Although
HormelHormel Foods Corporation is a food company based in southeastern Minnesota , perhaps best known as the producer of Spam luncheon meat. The company was founded as George A. Hormel & Company in Austin, Minnesota, U.S., by George A. Hormel in 1891. The company changed its name to Hormel Foods...
resigned itself to
genericideA genericized trademark is a trademark or brand name that has become the colloquial or generic description for, or synonymous with, a general class of product or service, rather than as an indicator of source or affiliation as intended by the trademark's holder...
, it has fought attempts by other companies to register "spam" as a trademark in relation to computer products.
See also
- Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
- Copyfraud
Copyfraud is a term used by Jason Mazzone, an Associate Professor of Law at Brooklyn Law School, to describe the use of false claims of copyright to attempt to control works not under one's legal control.-Introduction:Mazzone describes copyfraud as:...
- Copyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
- Copyright status of work by the U.S. government
- Copyright Term Extension Act
The Copyright Term Extension Act of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship...
- CSPD, Duke University Law School's Center for the Study of the Public Domain
The Center for the Study of the Public Domain, based at Duke Law School, aims to redress the balance of academic study of intellectual property. In their analysis, academic focus has been too great on the incentives created by these rights, rather than the contribution to creativity from...
- Creative Commons
Creative Commons is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as Creative Commons...
- Eldred v. Ashcroft
Eldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
- Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....
- Free software
Free software, software libre or libre software is software that can be used, studied, and modified without restriction, and which can be copied and redistributed in modified or unmodified form either without restriction, or with restrictions that only ensure that further recipients can also do...
- Limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....
- List of countries' copyright length
- List of films in the public domain in the United States
- Orphan works
- Public Domain Enhancement Act
The Public Domain Enhancement Act , ) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status...
- Public domain film
A public domain film is a film that was released to public domain by its author or because its copyright has expired.- Public domain film by country :...
- Public domain image resources
- Public domain in the United States
Works are in the public domain if they are not covered by intellectual property rights, such as copyright, at all, or if the intellectual property rights to the works has expired.- Public domain in copyrighted works in the United States :...
- Public domain music
Music is in the public domain if like with any other work in the public domain:*all rights have expired or*the authors have explicitly put a work into the public domain*there never were copyrights-Copyrights:For music the involved rights are:...
- Public domain software
Public domain software is software that has been placed in the public domain, in other words there is absolutely no ownership of the intellectual property that the software represents....
- Rule of the shorter term
The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment, to at most the copyright term granted in the...
External links