Public Domain Works – Definition

Cite this article as:"Public Domain Works – Definition," in The Business Professor, updated April 22, 2019, last accessed October 24, 2020, https://thebusinessprofessor.com/lesson/public-domain-works-definition/.

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Public Domain Works Definition

The public domain comprises every creative work to which exclusive intellectual property rights do not apply. The rights might have expired, been expressly waived, forfeited, or may be inapplicable.

A Little More on Works in the Public Domain

Public domain refers to creative materials which intellectual property laws such as trademark, copyright, or patent laws do not protect. These works are owned by the public as against being owned by individual artists or authors. Anybody can make use of a public domain work without getting permission, but none can own it.

There are four major ways through which works arrive in the public domain:

  •         Expiration of the copyright
  •         Failure by the copyright owner to abide by the copyright renewal rules
  •         Dedication: deliberate placement by the copyright owner in the public domain or
  •         A type of work that isn’t protected by copyright law.

There are certain things that copyright law doesn’t protect. This law doesn’t protect book titles or movie titles, nor does it protect short phrases like, “make my day.” Also, facts, theories, or ideas are not covered by copyright protection. The aforementioned things are free for everyone to use with no authorization.

Facts and Theories

Copyright does not protect a fact or a theory. For instance, the fact about a comet passing by the earth in 2027 isn’t protected by copyright. If this fact was discovered by a scientist, then anyone can use it freely without seeking the permission of the scientist. Also, if an individual creates a theory that a nuclear device can destroy the comet, anyone can make use of the theory in creating a movie or book. But, the unique expression of a fact may be protected. Therefore, if a movie is created by a filmmaker about destroying a comet using a nuclear device, the exact way he portrayed the ideas in the movie will be protected by copyright.

Authors of other works actively dedicate them to the public domain. Some examples include the CIA’s World Factbook, reference implementations of cryptographic algorithms, and the image-processing software ImageJ which was created by the National Institutes of Health. The term is known as “public domain” is not usually applied to situations where the author of a work retains residual rights where the use of the work is known as “with permission” or “under license”.

As rights differ from country and jurisdiction, a work may answer to rights in a certain country and be in the public domain in a different country. Certain rights depend on registrations based on the country, and registration absence in a particular country, if needed, brings about public-domain status for a work in such a country. Public domain as a term may be interchanged with other undefined or imprecise terms such as the “commons” or “public sphere”, including concepts like the “intellectual commons”, the “commons of the mind”, and the “information commons”.

Boundaries of public domain definition in relation to copyright, or in general, intellectual property, see the public domain as negative space. This means that it comprises works which were not protected by copyright law or works that are not in copyright term anymore.

Using the term “public domain” can become more granular, including for instance, using works in copyright allowed by copyright exceptions. A definition such as this terms work in copyright private property conditional upon fair-use rights, as well as, limitation on ownership. Lange provides a conceptual definition whose focus was on what the public domain should be: “the public domain should be a place of sanctuary (refuge) for personal creative expression, a refuge conferring assertive protection against private appropriation forces which threatened such expression”. The public domain was described by Patterson and Lindberg, not as a territory, but as a concept. Certain materials such as sunlight, space, life, rain, the air we breathe, thoughts, creations, feelings, words, ideas, and numbers are not subjected to private ownership. The materials which make up our cultural heritage must be accessible to all living to use no less than the necessity of matter for biological survival. The public domain may be used interchangeably with other undefined or imprecise terms like the “commons” or “public sphere” with the inclusion of concepts like the “intellectual commons”, the “commons of the mind”, and the “information commons”.

A public-domain book refers to a book without copyright, one that was created with no license, or a book whose copyrights have been forfeited or expired. In most countries, the copyright term of protection lasts until the 1st of January, and exactly 70 years after the latest living author’s death.  Mexico has the longest copyright terms which comprise life and also 100 years for every death since July 1928.

The United States is a major exception, where all books, as well as, tales written before 1923 are in the public domain. Copyrights in the U.S. have a lasting period of 95 years for books which were written between 1923 and 1978.

The United States copyright laws set differences between musical compositions and sound recordings. While musical compositions refer to notation, melody, and/or lyrics which a composer and/or lyricist created with the inclusion of sheet music, sound recordings, on the other hand, refer to a recording which an artist performs, including an LP, CD, or digital sound file. General rules that apply to other works also apply to musical compositions and anything published before 1922 is regarded as public domain. On the contrary, sound recordings are subject to various rules and won’t be eligible for the domain until 2049 to 2067, depending on the publication date and location.

A public-domain film is a film whose release was masterminded by the author or because of its copyright expiration. In 2016, there were over 2,000 films on public domain in all genres, ranging from musicals to horror, romance, animated films, and to western movies.

 

For decades, model code publishers—sample laws which a state or city can adopt have claimed copyrights. Local laws, state laws, and ordinances are all based on such codes. They include copyright notices in the name of the publisher or some other pointer the publisher claims the copyright. In a major victory for public domain exponents, a federal appellate court discovered that it’s when local governments enact model codes into law that they enter the public domain.

References for Public Domain

Academic Research on Public Domain Works

Property rights and the efficient exploitation of copyrighted works: An empirical analysis of public domain and copyrighted fiction bestsellers, Heald, P. J. (2007).  Minn. L. Rev., 92, 1031. This article explicates property rights, as well as, how copyrighted works are efficiently exploited. An analysis is carried out on public domain and also copyrighted fiction bestsellers. Recently, policymakers and economists have defended copyright protection extension in a bid to assure the effective exploitation of existing works. They state that public domain works may be over-exploited as a result of congestion externalities or under-exploited as a result of the lack of property rights. A comparison is made in this study based on the prices, availability, and number of editions of 166 public domain bestsellers. The bestsellers chosen were published between 1913 and 1922 alongside 168 copyrighted bestsellers between 1923 and 1932. Another comparison is made between the twenty most durable works between 1913 and 1922 and the twenty most durable public domain works between 1913 and 1922.

In Defiance of Bridgeman: Claiming Copyright in Photographic Reproductions of Public Domain Works, Cameron, C. T. (2006). Tex. Intell. Prop. LJ, 15, 31. This research paper centers on public domain works in relation to claiming copyright in photographic reproductions.

Do bad things happen when works enter the public domain?: Empirical tests of copyright term extension, Buccafusco, C., & Heald, P. J. (2013). Berkeley Technology Law Journal, 1-43. This paper seeks to answer the question about whether bad things happen by the time works enter the public domain. An empirical analysis is carried out on copyright term extension. Based on the recent copyright statute, copyrighted works of film, literature, and music will begin to change into 2018’s public domain. While this will be advantageous for creators and users, it could be catastrophic for the valuable copyright owners. Hence, the subsequent years would probably encounter another round of passionate lobbying by the music, publishing, and film industries to prolong the terms of works that exist already.

Is the Public Domain Permanent: Congress’s Power to Grant Exclusive Rights in Unpublished Public Domain Works, Reese, R. A. (2006). Colum. JL & Arts, 30, 531. This paper seeks to answer the question about the public domain being permanent. In recent years, regulating works of authorship by Congress power has been scrutinized.

Protection for Titles of Literary Works in the Public Domain, Kurtz, L. A. (1984). Rutgers L. Rev., 37, 53. This work lays emphasis on protecting the titles of creative works in the public domain.

Copyright Protection for the Restoration, Reconstruction and Digitisation of Public Domain Works, Rahmatian, A. (2010).  This research work lays emphasis on copyright protection for reconstructing, restoring and digitizing public domain works. This is a controversial matter. A pillar of copyright protection is the requirement that the work comes from the author and doesn’t originate totally from a pre-existing work. Restoration, as well as, reconstruction are seen as resurrecting a pre-existing.

Uses of Titles for Copyrighted and Public Domain Works, Tannenbaum, S. W. (1958). Bull. Copyright Soc’y USA, 6, 64. Copyrighted and public domain works and the essence of titles.

Scientific and critical editions of public domain works: an example of European Copyright Law (dis) harmonization, Margoni, T., & Perry, M. (2011). This article centers on the scientific, as well as, critical editions of public domain works using European copyright law harmonization as a case study. Despite the lack of agreement among European countries on how to treat scientific and critical editions, majority of these nations agree on the main proposition that this type of work will attract some sort of protection under neighboring rights doctrines in their copyright codes.

A Picture is Worth a Thousand Words: The Basis for Copyrightability of Characters in Public Domain Works, Gentin, A. L. (1987). Colum.-VLA JL & Arts, 12, 73. This article is based on the foundation for characters’ copyright in public domain works.  

Public domain: What it is and how it works, Butler, R. P. (2001). Knowledge Quest, 29(5), 47. This paper focuses on the public domain, what it is and also how it works.

Study on Difference in Perception of Shared Economy and Public Domain Works, Min, J., & Jeon, S. K. (2016). The Journal of the Korea Contents Association, 16(7), 532-540. This studies to distinction in the perception of shared economy and also public domain works.

SMEs, Copyright and the Public Domain (The Value of Public Domain Works) Erickson, K., & Meletti, B. (2015).  This work examines three aspects, small and medium enterprises, copyright, and public domain. SMEs face many difficulties related to copyright management. These difficulties are as a result of features such as availability of resources, size of SMEs ranging from 1 to 250 employees, and market position. SMEs are necessary to the creative economy in the United Kingdom and also other countries.

 

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