From The Art and Popular Culture Encyclopedia
Public domain and the Internet
The term "public domain" is often poorly understood and has created significant legal controversy. Historically, most parties attempting to address public domain issues fell into two camps:
- Businesses and organizations who could devote staff to resolving legal conflicts through negotiation and the court system.
- Individuals and organizations using materials covered by the fair use doctrine, reducing the need for substantial governmental or corporate resources to track down individual offenders.
With the advent of the Internet, however, it became possible for anybody with access to this worldwide network to "post" copyrighted or otherwise-licensed materials freely and easily. This aggravated an already established but false belief that if something is available through a free source, it must be public domain. Once such material was available on the net, it could be perfectly copied among thousands or even millions of computers very quickly and essentially without cost.
Freely obtained does not mean free to republish
These factors have reinforced the false notion that "freely obtained" means "public domain." One could argue that the Internet is a publicly available domain, not licensed or controlled by any individual, company, or government; therefore, everything on the Internet is public domain. This specious argument ignores the fact that licensing rights are not dependent on the means of distribution or consumer acquisition. (If someone gives a person stolen merchandise, it is still stolen, even if the receiving party was not aware of it.) Chasing down copyright violations based on the idea that information is inherently free has become a primary focus of industries whose financial structure is based on their control of the distribution of such media.
(Almost) everything written down is copyrighted
Another complication is that publishing exclusively on the Internet has become extremely popular. In countries party to the Berne Convention, an author's original works are covered by copyright as soon as the work is put into a "fixed" form; no formal copyright notice or registration is necessary. But such laws were passed at a time when the focus was on materials that could not be as easily and cheaply reproduced as digital media, nor did they comprehend the ultimate impossibility of determining which set of electronic bits is original. All Internet postings (including blogs and emails) are copyrighted material unless explicitly stated otherwise.
The distribution of many types of Internet postings (particularly Usenet articles and messages sent to electronic mailing lists) inherently involves duplication. The act of posting such a work can therefore be taken to imply consent to a certain amount of copying, as dictated by the technical details of the manner of distribution. However, it does not imply total waiver of copyright.
Furthering the public domain with the Internet
Many people are using the Internet to contribute to the public domain, or make works in the public domain more accessible to more people. For example, Wikisource and Project Gutenberg coordinate the efforts of people who transcribe works in the public domain into electronic form. Some projects exist for the sole purpose of making material available into the public domain or under no-cost licenses. The International Music Score Library Project (IMSLP) is attempting to create a virtual library containing all public domain musical scores, as well as scores from composers who are willing to share their music with the world free of charge. The Eyebeam OpenLab creates software and hardware projects in the public domain, such as the work of the Graffiti Research Lab.
Note that there are many works that are not part of the public domain, but for which the copyright owner has chosen either to not enforce those rights, or to grant some subset of those rights to the public. For example, the Free Software Foundation creates copyrighted software and licenses it without charge to the public for most uses under the GNU General Public License, forbidding only proprietary redistribution. Sometimes such work is incorrectly referred to as "public domain" in informal speech.
Note also that while some works (especially musical works) may be in the public domain, international law considers performances or some transcriptions of those works to be derivative works, subject to their own copyrights. Similarly, a film adaptation of a public-domain story (such as a fairy tale or a classic work of literature) would be covered by copyright law.