Defining Public Domain or PD Works
Although commonly used in copyright parlance, the phrase public domain is often misunderstood. Public domain or PD is commonly used to refer to content that is not protected by copyright law. Such content may not be protected for a variety of reasons including the following:
- The duration of copyright in the work has expired. For example, in the U.S. and European Union countries, copyright expires seventy years after the death of an author. In Canada, copyright expires fifty years after the author’s death. Copyright often expires on December 31st of the year of expiration so this is the largest category for new works to enter into the PD in 2013.
- The work is not fixed in a tangible form, for example, a speech or lecture or improvisational comedy routine that has not previously been written or recorded in any manner.
- The work does not have sufficient originality, for example, lists or tables with content from public documents or other common sources may not be eligible for copyright protection.
- The work has been produced by the U.S. federal government. In the U.S., works produced by the federal government do not have copyright protection. However, a work produced by a consultant to the government may have protection and the copyright may be transferred to the government. Note that in other countries such as Canada, there is copyright protection in federal government works.
Do I Need Permission to Use Public Domain Works?
No, when a work is in the public domain, that work may be used and copied freely without any permission from, or payment to, the copyright owner. For example, you could publish a PD book in print or electronic form. You may also modify the book in any manner. Note that this is true in the U.S. and Canada however in some countries there is a perpetual right that protects the reputation of an author and modification of a work may be considered a violation of that moral right.
Adaptations of Works
Adaptations of works including translations, amended versions, and annotated works of PD works, may have their own copyright as a new version of a work and may be subject to copyright protection on its own. For example, Shakespeare’s Romeo & Juliet may be in the public domain but a new version with annotations or illustrations may have copyright protection in these new parts of the work.
Public Domain in International Copyright Law
As touched upon above, the fact that a work is either protected by copyright in the U.S. or is PD in the U.S. does not mean that the same work will have the same status in another country. For example, a government work may be PD in the U.S. but protected by copyright in Canada. Also, due to different durations of copyright in different countries, a work that is still protected by copyright in the U.S. because of the 70 year duration may be in PD for the last 20 of those 70 years in a country where copyright duration is 50 years. Also, moral rights protection in some countries may protect the reputation of an author in a work in which the copyright/economic right has expired.
Determining the Status of a Work
Determining if a work is in the public domain in the U.S. is fairly complicated due to various factors such as different durations for different works and amendments in U.S. copyright laws. Click for a helpful chart to determine whether copyright has expired in a work in the U.S.
Is there a tool you use to determine whether copyright has expired in a work? Please comment below and share. It would be helpful to include such tools in various countries.