What Is The Public Domain?

“How do I know if something is in the public domain?” Public domain is a frequently used term in copyright parlance, yet it isn’t defined in copyright statutes. Below we provide insight into when something is in the public domain under copyright law. This information will help guide you when determining when you need to obtain copyright permissions.

When is a Work in the Public Domain?

This post was originally published in Copyright, New Media Law & E-Commerce News, a free weekly publication.

What is the Public Domain?

What is the public domain?Although commonly used in copyright parlance, the phrase “public domain” is not in the U.S. Copyright Act. It is, however, commonly used to refer to content that is not protected by copyright law. Works that are in the public domain may be used freely, without obtaining permission from or compensating the copyright owner.

Such works or content may not be protected for a variety of reasons, including the following:

  • The duration of copyright in the work has expired. In the U.S., for example, the copyright in a book expires 70 years after the death of its author. (In Canada, copyright expires 50 years after the author’s death.)
  • The work has been produced by the U.S. federal government. In the U.S., works produced by the federal government don’t have copyright protection. However, a work produced by a consultant to the government may have protection and that copyright may be transferred to the government. Note that in other countries such as Canada, there is copyright protection in federal government works.
  • The work isn’t fixed in a tangible form. For example, a work such as a speech, lecture or improvisational comedy routine that hasn’t previously been written or recorded in any manner isn’t protected by copyright and therefore is in the public domain.
  • The work didn’t include a proper copyright notice prior to 1 March 1989. In the U.S., this doesn’t apply to works created after 1 March 1989 since a copyright notice is no longer mandatory to protect a work. However, prior to that date, notice of copyright was necessary on all published works — without this notice, the work went into the public domain. Note that most countries don’t have a copyright notice requirement.
  • The work does not have sufficient originality. Examples of works that may not have sufficient originality to be eligible for protection by copyright include: lists or tables with content from public documents or other common sources.

Examples of Public Domain Works

Works in the public domain in the U.S. generally include the following:

  • Federal legislative enactments and other official documents
  • Titles of books or movies, short phrases and slogans, lettering or coloring
  • News, history or ideas (note that a description of an idea in text or images, for example, may be protected by copyright)
  • Plots, characters and themes from works of fiction
  • Procedures, methods, systems, processes, concepts, principles, discoveries or devices

Adaptation of Works in the Public Domain

An adaptation of a work in the public domain may have copyright protection on its own as a new version of a work. Adaptations include translations, amended versions and annotated versions. 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 Other Countries

The fact that a work is either protected by copyright in the U.S. or in the public domain in the U.S. doesn’t mean that same work will have the same status in another country. For example, a U.S. government work may be in the public domain in the U.S. but protected by copyright in Canada. Also, due to different durations of copyright among countries, a work that is still protected by copyright in the U.S. because of the 70-year duration may be in the public domain for the last 20 of those 70 years in a country where copyright duration is 50 years.

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