A term frequently used in the copyright parlance but never clearly defined. No wonder so many people struggle with its definition and usage. How to figure out if something is in the public domain? Let’s find the answer to this question together.
PUBLIC DOMAIN’s ENIGMA
Surely, it is not the first time you hear the term PUBLIC DOMAIN. It is quite popular but for some reason, it is not covered in the U.S. Copyright Act. So, to make things clear, the public domain is being used in reference to any content that is not protected by copyright law, which means that it can be used freely. The exclusive property rights have either expired, been fortified or are no longer applicable.
The expression ’fall in the public domain‘ was used for the first time in the mid 19th century, in France. Among different types of content in the public domain, such things as books, movies, phrases and slogans, plots, characters, news, facts, ideas, methods, concepts, devices and discoveries may be listed. It is important to keep in mind that some of these works may be, at the same time, protected by other regulations such as trademark protection or patents. Note that an adaptation of a particular work (such as translation, amended and annotated versions) may have copyright protection on its own since it is a new version of a certain piece.
WHY IT’S CLASSIFIED AS PUBLIC DOMAIN?
There are several reasons why certain works are not protected by copyright. One of the most common cases is the expiration of the copyright. As stated in the Berne Convention in 1886, the minimum duration of copyright protection shall cover the life of the author plus fifty years after their death. Currently, some countries (including the United States) decided to prolong this time span to life-plus-seventy. The longest copyright term is in Mexico: life plus 100 years for all deaths since 1928. When it comes to books, there is also a notable exception in the U.S, where all of those published prior to 1924 are in the public domain. Did you know that there were no copyrights while you were reading ’Pride and Prejudice‘ by Jane Austen or Lewis Carroll’s ’Alice in Wonderland‘? Curious about the origins and evolution of copyright law? Read more here.
Another reason for a work entering a public domain can be its non-tangible form. Speeches, lectures, improvised songs which were not written or recorded do not constitute as a subject for copyright protection.
It might be the case that certain pieces, such as tables or lists with content from common sources and public domains, would not have enough originality. Such works are not eligible for copyright protection.
Depending on the country, works produced by the government may or may not have copyright protection. If the work was produced by the U.S. federal government, it does not have copyright. But if we move a bit further – to Canada – the situation is just the opposite. So, it is important to check the regulations which apply to a certain country.
PHOTOGRAPHS OF… WORKS OF ART
It became a common practice of many art galleries and museums to license the use of photographs of famous works of art from their collections. Even though the pictures themselves are in the public domain, the galleries still claim copyright in their photographs of those artworks. Such a practise is slightly controversial and became even more complicated in the United Kingdom due to the influence of European copyright law. Currently, it seems that the photographic reproductions of paintings made before 1 July 1995 are protected by copyright law while those made after are probably not. Due to the uncertain copyright status, when planning on using a photograph of a famous work, the best idea is to check whether it is actually free to use. Wikimedia Commons and their vast database of freely usable media might be helpful here.
U.S. vs OTHER COUNTRIES
Just because certain work is in the public domain or under copyright law in the U.S. it does not necessarily mean that it is going to be the same case in another place on earth. See the example with Canada above. Such a situation may sometimes create certain problems and lead to misunderstandings and shall be taken into consideration especially when working on the projects or website with content used in countries with different copyright durations. American legal scholar, Pamela Samuelson, had perfectly captured the very nature of the public domain by describing it as being ’different sizes at different times in different countries‘. Every year, on the 1st day of January, there is a list of authors whose works are entering the public domain.