“How do I know if something’s in the public domain?” Public domain is a frequently used term in copyright parlance, yet it isn’t defined in copyright statutes. This article provides insight into when something is in the public domain under copyright law. This information will help guide you in determining when you need to obtain copyright permissions. Public domain is discussed from the U.S. perspective and also from an international perspective.
This post was originally published in Copyright, New Media Law & E-Commerce News, a free weekly publication.
What Is the Public Domain?
Although commonly used in copyright parlance, the phrase “public domain” (PD) isn’t in the U.S. Copyright Act. It is, however, commonly used to refer to content that isn’t protected by copyright law.
Works that are in the public domain may be used freely, without obtaining permission from or compensating the copyright owner.
How Do Works Enter the Public Domain?
Public domain works, or content that isn’t protected by copyright law, 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 minimum duration of copyright protection as set out in the leading copyright treaty, the Berne Convention, is life-plus-fifty but many countries now have a life-plus-seventy duration as in the U.S. (See the section below on Public Domain in Other Countries.)
- The work was 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 or freelancer to the government may have protection and may transfer that copyright 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 — 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, when a copyright notice became 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 doesn’t 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
In terms of copyright protection, 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, facts 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
Note that the above list of works may be protected by other areas of intellectual property such as patents or trademark protection.
You may be interested in our Intellectual Property Primer.
Adaptation of Public Domain Works
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 and 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 has the same copyright 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. (This sounds odd and in practice this can cause problems. For example, a person in Canada may have difficulty clearing the rights to use a U.S. government work in Canada since that same work is in the public domain when used in the U.S.)
Also, due to different durations of copyright among countries, a work that’s 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 with a 50-year copyright duration. This is an issue to consider for any online projects or websites where uploaded content will be used in countries with different copyright durations than your own country.
On 1 January each year, various published lists highlight works that enter into the public domain that year. These lists are country specific. For example, the works of Dorothy Parker are now in the public domain (as of 1 January 2018) in Canada but not in the U.S.
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If you’re a librarian or information professional, see our post, 10 Things U.S. Librarians Must Know About Copyright Law.
