From The Art and Popular Culture Encyclopedia
Public domain comprises the body of knowledge and innovation (especially creative works such as writing, art, music, and inventions) in relation to which no person or other legal entity can establish or maintain proprietary interests within a particular legal jurisdiction. This body of information and creativity is considered to be part of a common cultural and intellectual heritage, which, in general, anyone may use or exploit, whether for commercial or non-commercial purposes. Only about 15 percent of all books are in the public domain, and 10 percent of all books that are still in print.
If an item ("work") is not in the public domain, this may be the result of a proprietary interest such as a copyright, patent, or other sui generis right. The extent to which members of the public may use or exploit the work is limited to the extent of the proprietary interests in the relevant legal jurisdiction. However, when the copyright, patent or other proprietary restrictions expire, the work enters the public domain and may be used by anyone for any purpose.
All copyrights and patents have always had a finite term, though the terms for copyrights and patents differ. When terms expire, the work or invention is released into public domain, in most countries, this is 20 years. A trademark registration may be renewed and remain in force indefinitely provided the trademark is used, but could otherwise become generic.
Copyrights are more complex than patents; generally, in current law, the copyright in a published work expires in all countries (except Colombia, Côte d'Ivoire, Guatemala, Honduras, Mexico, Samoa, and Saint Vincent and the Grenadines) when any of the following conditions are satisfied :
- The work was created and first published before January 1, 1923, or at least 95 years before January 1 of the current year, whichever is later;
- The last surviving author died at least 70 years before January 1 of the current year;
- No Berne Convention signatory has passed a perpetual copyright on the work; and
- Neither the United States nor the European Union has passed a copyright term extension since these conditions were last updated. (This must be a condition because the exact numbers in the other conditions depend on the state of the law at any given moment.)
These conditions are based on the intersection of United States and European Union copyright law, which most other Berne Convention signatories recognize. Note that copyright term extension under U.S. tradition usually does not restore copyright to public domain works (hence the 1923 date), but European tradition does because the EU harmonization was based on the copyright term in Germany, which had already been extended to life plus 70.
United States law
In the United States, copyright law has changed several times since the founding of the country. It is held under Feist v. Rural that Congress does not have the power to re-copyright works that have fallen into the public domain. However, re-copyrighting has happened before. "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain, principally by aliens of countries with which we had been at war."
Works created by an agency of the United States government are public domain at the moment of creation. Examples include military journalism, federal court opinions (but not necessarily state court opinions), congressional committee reports, and census data. However, works commissioned by the government but created by a contractor are still subject to copyright, and even in the case of public domain documents, availability of such documents may be limited by laws limiting the spread of classified information.
Before 1978, unpublished works were not covered by the federal copyright act. This does not mean that the works were in the public domain. Rather, it means that they were covered under (perpetual) common law copyright. The Copyright Act of 1976, effective 1978, abolished common law copyright in the United States; all works, published and unpublished, are now covered by federal statutory copyright. The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If the work was created before 1978 but first published on or before December 31, 2002, the work is covered by federal copyright until 2047.
Works published with notice of copyright or registered in unpublished form prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain copyright for a full 95-year term.
Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress within 5 years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.
Sound recordings fixed before February 15, 1972, were generally covered by common law or in some cases by statutes enacted in certain states, but were not covered by federal copyright law. The 1976 Copyright Act, effective 1978, provides federal copyright for unpublished and published sound recordings fixed on or after February 15, 1972. Recordings fixed before February 15, 1972, are still covered, to varying degrees, by common law or state statutes. Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the 1976 Copyright Act until February 15, 2067.
Critics of copyright term extensions have said that Congress has achieved a perpetual copyright term "on the installment plan."
British government works are restricted by either Crown Copyright or Parliamentary Copyright. Published Crown Copyright works become public domain at the end of the year 50 years after they were published, unless the author of the work held copyright and assigned it to the Crown. In that case, the copyright term is the usual life of author plus 70 years. Unpublished Crown Copyright documents become public domain at the end of the year 125 years after they were first created. However, under the legislation that created this rule, and abolished the traditional common law perpetual copyright of unpublished works, no unpublished works will become public domain until 50 years after the legislation came into effect. Since the legislation became law on 1 August 1989, no unpublished works will become public domain under this provision until 2039. Parliamentary Copyright documents become public domain at the end of the year 50 years after they were published. Crown Copyright is waived on some government works provided that certain conditions are met.
Laws of Canada, Australia, and other Commonwealth nations
These numbers reflect the most recent extensions of copyright in the United States and Europe. Canada and New Zealand have not, as of 2006, passed similar twenty-year extensions. Consequently, their copyright expiry times are still life of the author plus 50 years. Australia passed a 20-year copyright extension in 2004, but delayed its effect until 2005, and did not make it revive already-expired copyrights. Hence, in Australia works by authors who died before 1955 are still in the public domain.
As a result, works ranging from Peter Pan to the stories of H. P. Lovecraft are public domain in both countries. (The copyright status of Lovecraft's work is debatable, as no copyright renewals, which were necessary under the laws of that time, have been found. Also, two competing parties have independently claimed copyright ownership on his work.)
As with most other Commonwealth of Nations countries, Canada and Australia follow the general lead of the United Kingdom on copyright of government works. Both have a version of Crown Copyright which lasts for 50 years from publication. New Zealand also has Crown Copyright, but has a much greater time length, at 100 years from the date of publication. India has a government copyright of sixty years from publication, to coincide with its somewhat unusual life of the author plus sixty years term of copyright.
Examples of inventions whose patents have expired include the inventions of Thomas Edison. Examples of works whose copyrights have expired include the works of Carlo Collodi, Mozart, and most of the works of Mark Twain, excluding the work first published in 2001, A Murder, a Mystery, and a Marriage. In the United States, the images of Frank Capra's classic film, It's a Wonderful Life (1946) entered into the public domain in 1974, because someone inadvertently failed to file a copyright renewal application with the Copyright Office during the 28th year after the film's release or publication. It wasn't until 1993 when Republic Pictures relied on the 1990 United States Supreme Court ruling in Stewart v. Abend to enforce its claim of copyright to portions of the film's sound track. As a result, only NBC is currently licensed to show the film on U.S. network television, the colourized versions have been withdrawn and Republic got exclusive video rights to the film (under license with Artisan Entertainment). Rights to It's a Wonderful Life now belong to Paramount Pictures.
Currently four shorts by the Three Stooges are in the public domain due to accidental failure to renew their copyrights in the '60s. These are Disorder in the Court, Brideless Groom, Malice in the Palace, and Sing a Song of Six Pants. Other features and films from the Stooges are known to be in public domain as well.
Some works may never fully lapse into the public domain, such as the play Peter Pan by J. M. Barrie. While the copyright of this work expired in the United Kingdom in 1987, it has been granted special treatment under the Copyright, Designs and Patents Act 1988 (Schedule 6)] that requires certain royalties to be paid for performances within the UK, so long as Great Ormond Street Hospital continues to exist. J. M. Barrie had bequeathed the rights to Peter Pan to the hospital in perpetuity as an endowment.
- Berne Convention for the Protection of Literary and Artistic Works
- Copyright status of work by the U.S. government
- Copyright Term Extension Act
- Creative Commons
- Eldred v. Ashcroft
- Fair dealing
- Fair use
- Free software
- Limitations and exceptions to copyright
- List of countries' copyright length
- List of films in the public domain in the United States
- Orphan works
- Public Domain Enhancement Act
- Public domain film
- Public domain image resources
- Public domain music
- Public domain software
- Rule of the shorter term