Public Domain Frequently Asked Questions
- What is the “public domain”?
- Is the public domain just material that you can use without paying for it?
- What kinds of things are in the public domain?
- Who benefits from the public domain?
- The public domain sounds really valuable, but I’m in favor of intellectual property, is there a contradiction?
- This site talks a lot about copyright law, is the public domain just a copyright issue?
- What does copyright cover?
- What does copyright not cover?
- What material goes immediately into the public domain?
- Is free and open source software in the public domain?
- Are Creative Commons-licensed works in the public domain?
- How has the public domain been diminished in recent years?
- What are orphan works?
- Can't all of these problems be solved just by getting permission or paying a fee?
- How does the erosion of the public domain relate to the Internet and the “digital revolution”?
- What is the Copyright Term Extension Act (CTEA) and what happened in the case that challenged its constitutionality — Eldred v. Ashcroft?
- How does the 2012 Supreme Court decision in Golan v. Holder affect the public domain?
- What is “fair use”?
- What is the Center for the Study of the Public Domain?
The public domain is the realm of material — ideas, images, sounds, discoveries, facts, texts — that is unprotected by intellectual property rights and free for all to use or build upon. It includes our collective cultural and scientific heritage, and the raw materials for future expression, research, democratic dialogue and education.
No. Public domain material is “free” as in “free speech,” not “free” as in “free beer” — because it is unprotected by intellectual property rights, it is free of centralized control as a legal matter, and you can use it without having to get permission. But we hope that in many cases it would also be available at little or no cost. So for example, the works of Charles Dickens are in the public domain even though they are still for sale, but if you love A Tale of Two Cities you can freely translate it, make it into a movie, or turn it into a present-day tale of two cities without permission. Conversely, many copyrighted works may be available free of cost online, but because they are copyrighted you would need permission before translating or selling or adapting them.
One category would include entire works and inventions whose copyright or patent terms have expired (or that predated intellectual property laws entirely). Take, for example, the literary classics Alice’s Adventures in Wonderland, Peter Pan, Pinocchio, The Little Mermaid, The Jungle Book, The Hunchback of Notre Dame, or Fairy Tales by the Brothers Grimm — Disney was free to make its beloved animated versions of these books because their copyrights had lapsed, as well as its epic 3D version of Alice in Wonderland (directed by Tim Burton) which had the second-highest box office gross in 2010 and ranks ninth-highest in all-time box office gross. And in 2012, other studios interpreted public domain works to create such films as Anna Karenina (Tolstoy), Coriolanus (Shakespeare), Wrath of the Titans (classic Greek mythology), and Les Misérables (Victor Hugo). In the patent realm, drug producers can offer cheaper generic versions of Prilosec or Zoloft, and inventors can improve and market previous innovations, because their patents have expired. A second category would include the basic building blocks of creativity and innovation that are not protectable by copyrights or patents at all — such as ideas, facts, plotlines, genres, themes, basic chord progressions, scientific principles, theories, formulae, and laws of nature. (You can begin to see how useful the public domain is!) These materials go immediately into the public domain, even if they are incorporated into a larger, protected work.
Artists of all kinds rely on the public domain — Homer’s The Odyssey has given us Twain’s The Adventures of Huckleberry Finn, Joyce’s Ulysses, and the Coen Brothers’ O Brother Where Art Thou?, to name only a few; and the twelve bar blues influenced genres from country to jazz to soul to rock and roll. Journalists and activists use facts and symbols in the public domain to inform the public and spur debate. Hobbyists screen forgotten films and collect old recordings. Commercial publishers reprint public domain works and sell them at discounted prices. Teachers, libraries, museums, historians, archivists, and database operators use the public domain to collect, preserve, and teach us about our past. Scientific and technical research would be impossible without access to data and discoveries. Youth orchestras and church choirs perform public domain works for their communities. Read about other potential uses of the public domain on our why it matters page. The list goes on . . . chances are, you’ve used, enjoyed, and depended on the public domain as well.
Quite the contrary. You’ll be happy to hear that the public domain is a vital, indispensable part of our intellectual property system, and the inputs in the public domain are just as important to its function as the outputs protected by intellectual property. As Judge Kozinski of the Ninth Circuit Court of Appeals put it: “Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” Without the public domain, there would be little to protect with intellectual property rights — if copyright lasted long enough to lock up Shakespeare’s works, much of the literary canon would vanish; if data, theories and formulae were subject to intellectual property protection, then scientific progress would grind to a halt. So the intellectual property system needs both the incentives provided by exclusive rights and the freedoms provided by the public domain, and the key is to find the appropriate balance between them.
No, the public domain includes material that is unprotected by any intellectual property rights, including both copyrights and patents. Copyright law protects original works of authorship, while patent law protects inventions or discoveries. Because Public Domain Day celebrates the moments when copyrights expire and citizens can freely use creative works, the bulk of this website is focused on copyright law. But the public domain also includes patentable subject matter (processes, inventions, machines, products, and medicines) where the patents have expired. It also includes materials that cannot be copyrighted, patented or trademarked at all.
Copyright serves an important purpose: to encourage people to make and distribute new works. To do so, it gives authors the exclusive right to reproduce, distribute, publicly perform, and publicly display their works, and to make “derivative works” (such as translations and adaptations) based on their works. Copyright law covers creative works such as books, movies, music, photographs, poetry, plays, paintings, sculpture, architecture, websites, blogs, and software code. A work is protected by copyright as soon as it is fixed in a “tangible medium of expression” — whether by writing it down, recording it, pressing the shutter button, hitting “save,” etc. Neither a copyright notice nor registration is required for copyright protection.
Copyright only protects the original “expression” in creative works. Ideas, facts, genre (genre-making elements are sometimes called “scènes à faire”), and unoriginal elements are not copyrightable. For example, if you write a folk song about the perils of climate change, your original lyrics and melody would be copyrighted and you could prevent others from copying them without permission. But the facts you include about rising temperatures, the idea that climate change is dangerous and warrants greater public attention, your use of elements common to the folk genre, and the eerily prescient lines you borrowed from a Victorian poem would remain in the public domain for anyone to use. This is part of how copyright encourages future creativity. In the United States, copyright also does not protect works of the U.S. government (such as federal legislation, regulations, legal opinions, hearings, and all sorts of other information about how the government operates and what it produces). In addition, U.S. copyright law does not protect unoriginal databases or compilations of facts (such as a phone book), titles, names, short phrases, slogans, mere listings of ingredients, and utilitarian objects. For more information see the Copyright Office’s Copyright Basics.
Material that is not protectable by copyrights or patents goes immediately into the public domain. This includes the basic building blocks described above — ideas, facts, plotlines, genres, themes, basic chord progressions, scientific principles, theories, formulae, and laws of nature — even if they are part of a larger protected work. It also includes unprotectable works such as US government works and unoriginal databases.
No, free and open-source software is not in the “public domain,” which would mean that it is not protected by copyright law. The software is copyrighted, but the copyright holder chooses to grant specific freedoms to the public through a license (such as the General Public License), and she can do this precisely because she owns the copyright. So, while public domain materials are free because they’re unprotected by intellectual property rights, open-source software is free because of private action. This is how the license works: it says that anyone may copy the source code and incorporate it into a new program, but if they do so and redistribute their work, their new program must also be covered by the same license, making it freely available for others to use and build upon. (The license thereby keeps the source code publicly available and encourages broader collaboration, innovation, testing, and use.) If you violate these terms, then the freedoms granted by the license disappear, and you are where you would be without the license — namely infringing the programmer’s copyright. The free and open-source model has produced software that equals or, some would argue, exceeds the capabilities of proprietary software. Some examples of open-source software include the operating system Linux, the web browser Firefox, the programming language Perl, the web server software Apache, and the free word processors NeoOffice and AbiWord.
No, like free and open-source software licenses, Creative Commons licenses create a vibrant zone of freedom built on top of copyright law. Creative Commons-licensed works are not in the “public domain,” which would mean that they are not protected by copyright law. Rather, the works are copyrighted, and the copyright allows authors to choose to license their work under more generous terms than standard copyright. The authors of millions of creative works such as educational materials, books, movies, websites, blogs, photos, music and art have used Creative Commons licenses to grant a set of freedoms to the public — so that others can share, remix, use them commercially, or any combination thereof. The wealth of material available under Creative Commons licenses includes everything from MIT’s OpenCourseware to all of the articles in the Public Library of Science to millions of photographs on Flickr to all the text you might use every day on Wikipedia and the almost twelve million media files in Wikimedia Commons.
The public domain has been dramatically eroded in recent years. Most relevant to Public Domain Day in the United States are the following changes in copyright law. Until 1978, the copyright term was 28 years from the date of publication, renewable once for another 28 years. Estimates are that 85% of copyrights were not renewed (93% in the case of books), most likely because the works were no longer commercially valuable. In addition, works were not protected unless authors included a basic copyright notice — the word “copyright” or © with one’s name and year next to it (this notice requirement was eliminated in 1989). By some estimates, 90% of works did not include this copyright notice and immediately entered the public domain. So, before 1978, only 10% of works might have been subject to copyright at all, and of the works that were, up to 85% only used the first 28-year term, with 15% renewing for the full 56-year term. That’s 1.5% of all works with 56 years of protection, 8.5% with 28 years, and 90% completely free. In 1978, the renewable 28-year term was extended to a single term of the life of the author plus 50 years. Fast forward to 1998, and the copyright term was increased to an extraordinary 70 years after the death of a creator, and to 95 years after publication for works owned by corporations. This term extension applied not only to future works, but was retroactively applied to works that had already been created and enjoyed their full copyright term, and were set to enter the public domain. (How long is this current term? Consider this: the song “Happy Birthday to You,” registered for copyright in 1935, is now owned by Warner Chappell until 2030.) This series of legal changes has severely impoverished the public domain. Copyright has gone from being a legal system that governs a minority of creative expression to one that automatically governs the vast majority of creative works, whether or not the creators want or can use it, and does so for the full — and very long — term. This might be great if the benefits of protecting all works for such a long time outweighed the costs, but only a tiny percentage of copyright holders benefits from the longer copyright term — studies have found that only 2% of works between 55 and 75 years old continue to retain commercial value. The other 98% languish, with no one benefiting from the persisting copyright, while all users of the public domain lose a vast amount of available work. (This is explained in more detail below in the orphan works section.) A helpful chart explaining copyright terms is here and the US Copyright Office’s explanation of copyright terms is here.
One of the most troubling effects of the exceptionally long copyright term has been the increasing number of “orphan works.” These works are still presumably under copyright (in the United States only works published before 1923 are conclusively in the public domain), but they are commercially unavailable and the copyright owner cannot be found. They probably comprise the majority of the record of 20th century culture (one study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value). The default response of archivists, libraries, film restorers, historians, artists, scholars, educators, publishers, and others is to avoid using copyrighted works unless they are clearly in the public domain. As a result, orphan works are not used in new creative efforts or made available to the public due to uncertainty over their copyright status, even when there is no longer anyone claiming copyright ownership, or the owner no longer has any objection to such use. The costs here are huge: needlessly disintegrating films just when technology would allow for their preservation, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication. In the cases where the work is truly an orphan work, those costs are tragic because they are completely unnecessary: no one is benefiting from the continued copyright protection over these works, while the entire public loses the ability to adapt, transform, preserve, digitize, republish and otherwise make new and valuable uses of them. For more, see the Center’s proposals on orphan works and the US Copyright Office’s orphan works page. You can read more about the current costs associated with orphan works in The Chronicle of Higher Education’s “Out of Fear, Colleges Lock Books and Images Away From Scholars” and the American Bar Association Journal’s “A Trove of Historic Jazz Recordings Has Found a Home in Harlem, But You Can’t Hear Them.”
Is the public domain really that important? Surely, one can do all of the things mentioned on this website — copying, reprinting, translating, adapting, creating new versions — simply by getting permission or paying a fee to the copyright holder? Well, yes and no. First, a vast amount of our copyrighted culture — a majority of it according to some estimates — consists of the orphan works described above. In the case of these works, one cannot do any of the things mentioned here without a major legal risk, because there is no identifiable copyright owner who can give permission and copyright is a “strict liability system”: meaning that the fact that you made conscientious efforts to find the owner is no defense. For orphan works, therefore, lengthened terms effectively deny access and prohibit reuse and reworking; a cultural jail sentence with no appeal possible. Second, even if there is a copyright holder and the work is commercially available (the overwhelming proportion of older works are not) the cost of permission will effectively doom many laudable uses, even when the work was originally created under the promise of a term that has long since expired. Third, copyright holders may refuse permission for transformative reworking of material. Some transformative uses, such as parodies, may be protected by “fair use” or similar legal privileges, but many are not. At what point in time in the life of a work do we believe that the copyright holder should no longer have a unilateral veto over those who wish to build on the work?
It’s somewhere between ironic and perverse: the public domain is being impoverished just as its opportunities for creativity, innovation, democratic participation, and knowledge advancement are transformed. The potential functions of the public domain have been expanded and invigorated by the Internet, which allows people to find, collect, process, share, and remix information and culture with unprecedented speed and ease. Citizens can readily access government information, amateur artists can remix as never before, musicians who have never met can create songs together, professors from different universities can share and translate course materials, students and researchers can explore the contents of vast digital archives, and scientists conducting experiments in different labs can share data and findings. Commercial entities such as Google may want to digitize the world’s books, or a group of jazz fans may want to collect and add personal reflections to a treasure trove of recordings from the 1930s and post these online — all of this would be enabled by a robust public domain. As Professor James Boyle wrote in The Public Domain: “Imagine that energy, that decentralized and idiosyncratically dispersed pattern of interests: imagine all of this turned loose on the cultural artifacts of the twentieth century. Then imagine it coupled to the efforts of the great state archives and private museums who themselves would be free to do the same thing. Think of the people who would work on Buster Keaton, or the literary classics of the 1930s, or the films of the Second World War, or footage on the daily lives of African-Americans during segregation, or the music of the Great Depression, or theremin recordings, or the best of vaudeville. Imagine your Google search in such a world.” The contraction of the public domain is foreclosing this potential just as technology makes it possible.
The Copyright Term Extension Act (CTEA) is the 1998 law that extended the copyright term to life of the author plus 70 years, and to 95 years after publication for “works for hire” owned by corporations (read the full text here). Eldred v. Ashcroft was the Supreme Court case challenging the CTEA. The challenge was unsuccessful: over two strong dissents, the Court held that Congress acted within constitutional limits on its authority in adopting the term extension. A New York Times editorial declared that this decision “makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity... [The] Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.” The Washington Post, though more inclined to agree that retrospective extension might be constitutional, declared the copyright system to be “broken” in that it “effectively and perpetually protects nearly all material that anyone would want to cite or use. That’s not what the framers envisioned, and it’s not in the public interest.” You can read the documents from the Eldred case here.
“Public” By Sufferance Alone (Or “We Can Take Stuff Away From You Too!”)
As we explained earlier, many of those who rely on the public domain had their hopes dashed in the 2003 case of Eldred v. Ashcroft. The Constitution declares that copyrights must only be “for limited times” and that Congress can only create exclusive rights to “promote the progress” of knowledge and creativity. Despite those limitations, in Eldred, the Supreme Court held that Congress could retrospectively lengthen copyright terms – something that seemed neither “limited” nor aimed at promoting progress. (It is hard to incentivize dead authors!) But 2012 was to hold in store an even more grievous blow to the public domain. In Golan v. Holder, the Supreme Court held that Congress can remove works from the public domain without violating the Constitution. Yes, that is right – even if the public now enjoys unfettered access to a work, Congress is allowed to take that work out of the public domain and create a new legal monopoly over it. What’s more, the Court declared, Congress can do so even when it is clear that the new right “does not encourage anyone to produce a single new work”!
“If one reads Golan, one searches in vain for any limiting principle on Congress’s actions … Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.”
This decision marked a significant departure from the “bedrock principle” that once works enter the public domain, they remain there, free for anyone to use and build upon. The law at issue in Golan – Section 514 of the Uruguay Round Agreements Act – “restored” copyright to foreign works that had entered the American public domain for any of three reasons: the author failed to comply with copyright formalities, the U.S. did not have copyright relations with their country of origin at the time of publication, or they were sound recordings fixed before 1972. Golan was different from Eldred because while the works in Eldred were on the brink of entering the public domain, the works at issue in Golan were already in the public domain, and conductors, educators, film archivists and others were legally using them.
In upholding the law, the Golan majority explicitly endorsed the position that the public has no rights to the public domain. None. Under U.S. law as declared by the Court in this case, copyright is now officially “asymmetric.” While those who have copyrights enjoy vested, legally protected rights, “[a]nyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” The majority could not seem to imagine that the public had rights other than “ownership” over a free, collective culture. In a dissenting opinion, Justices Breyer and Alito asked “Does the [Constitution] empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes – all without providing any additional incentive for the production of new material?” Their answer was “No.”
What works were at issue in Golan? As Breyer described, “foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books – books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.” Moreover, many of these were obscure orphan works (works with no locatable rightsholder) that are now effectively off limits to educators, film collectors, community orchestras, and database compilers who previously had the right to use them for free.
What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment – would privatizing Shakespeare by government decree abridge freedom of speech? – or to the attitudes of those who penned the Copyright Clause that limits Congress’s power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress’s actions. In this decision, Justice Ginsburg’s majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.
In our opinion as legal scholars, this decision is shockingly cavalier in its dismissal of the importance of the public domain to free speech and to the progress of science and culture. It is also, again in our opinion, unsupported by the text, structure and history of the Constitution. Indeed, it seems flatly contrary to the dictates of the First Amendment and the limitations imposed by the Copyright Clause. Yet its message, however lamentable, is clear. If the public domain is to be protected in the United States, it is not going to be through the Constitution, but through reasoned argument, democratic pressure and legislative action. The public domain will be “public” only so long as the public demands it.
In the United States, fair use is a flexible category that lets you use expression still protected by copyright for many purposes including parody, commentary, criticism, news reporting, education, research, and reverse engineering to achieve software compatibility. Whether fair uses are part of the public domain is a matter of academic debate — you can read more about different scholarly conceptions of the public domain here.
The Center for the Study of the Public Domain’s mission is to promote research and scholarship on the contributions of the public domain to speech, culture, science and innovation, to promote debate about the balance needed in our intellectual property system, and to translate academic research into public policy solutions. Read more about our work here. The Center produces a range of educational materials, including the comic book Bound By Law?, which explores the effects of copyright and fair use on creativity. The comic book is freely available online under a Creative Commons license, so you can download, translate, share, or remix it. You can also buy a hard copy here.
The Public Domain Day 2013 web pages by Duke University's Center for the Study of the Public Domain are licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.