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  • Writer's pictureDavid Baker

PRACTICAL IP - The Public Domain

Updated: Oct 14, 2023

It (probably) isn’t what you think

The "public domain" refers to a body of creative works, inventions, and knowledge that is not protected by intellectual property rights, such as copyright, patent, or trademark. In practical terms, artists and creators should have a clear understanding of what the public domain is and how it works.

Works in the public domain are those whose exclusive intellectual property rights have expired, been forfeited, or never existed. This means they are free for anyone to use, without the need for permission or payment to the original creator.

Works that are typically in the public domain include:

  • Older works: Copyright protection generally has a limited duration (e.g., 70 years after the author's death in the United States). After this period, works enter the public domain.

  • Government works: Works created by government employees in the course of their official duties are often in the public domain.

  • Facts and ideas: These are not protected by copyright, so anyone can use them.

  • Works with expired copyrights: Copyrights may have expired or been forfeited for various reasons, putting the work in the public domain.

Creators can use public domain works as a foundation for new creations without the legal obligations and costs associated with copyright or other IP rights. This can be especially valuable for artists looking to build upon or adapt existing works. But, for older works, it's essential to research and identify the copyright status and duration. Online resources, copyright databases, and legal counsel can help clarify whether a work is in the public domain.

While public domain works can be freely used, remember that new creative elements added to a public domain work can be protected by copyright. This means that if you modify a public domain work, the modifications might not be in the public domain. And if you use public domain works in your creations, it's a good practice to attribute the original source, even though it's not legally required. Document your use of public domain materials to avoid any potential disputes.

Some creators intentionally contribute their work to the public domain using tools like Creative Commons licenses. If a work is made available under such licenses, you must follow the terms set by the creator.

And always beware that copyright laws evolve and works that were previously protected may eventually enter the public domain. Keep an eye on legal updates and changes in intellectual property laws.

Copyright laws also vary globally, so works may enter the public domain at different times in different countries. Creators dealing with international audiences should consider these variations.

How to determine if a work really is in the public domain

Determining whether a work is in the public domain can be a bit complex, as it depends on factors such as the type of work, its age, and the applicable copyright laws. Here are steps to help you ascertain if a work is in the public domain:

1. Check the Copyright Duration. Copyright laws vary by country, but in many places, copyright protection has a limited duration. In the United States, for example, works created after January 1, 1978, are protected for the life of the author plus 70 years. For works created by corporations or works published before 1978, the copyright term may differ. It's crucial to know the relevant copyright duration in your jurisdiction.

2. Find the Publication Date. Determine the publication date of the work. Copyright terms are often measured from the date of publication, creation, or the author's death.

3. Check the Copyright Status Online. There are various online resources and databases that can help you check the copyright status of a work. These include:

o The U.S. Copyright Office website for works published in the United States.

o The HathiTrust for books and documents.

o The Public Domain Sherpa, which provides information on copyright terms and public domain status.

o Project Gutenberg for access to many public domain books.

4. Consider International Copyright Laws. If you're dealing with works from multiple countries, be aware that copyright laws differ. A work might be in the public domain in one country but not in another. You may need to consider the copyright laws of the specific country where you intend to use the work.

5. Evaluate Government Works. In many countries, works created by government employees as part of their official duties are often automatically in the public domain. However, this isn't a universal rule and can vary by jurisdiction.

6. Check for Creative Commons Licenses. Some creators intentionally release their works into the public domain or under open licenses like Creative Commons. When a work is clearly marked as public domain or licensed with open terms, you can use it accordingly.

7. Consult Legal Experts. If you're dealing with complex situations, uncertain copyright status, or valuable intellectual property, consulting an attorney who specializes in copyright law is advisable.

8. Use Public Domain Databases. Some organizations maintain databases of public domain works. These can be valuable resources when determining a work's status.

Remember, even if a work is in the public domain, it's important to document your use of it and provide proper attribution when necessary. Additionally, if you make substantial creative additions to a public domain work, those additions may be subject to copyright protection.

Understanding the public domain and how it applies to your creative projects can be valuable for artists and creators. It offers a wealth of resources to draw from and can serve as a source of inspiration while helping to navigate complex copyright and intellectual property issues. Always consult legal experts or appropriate resources when dealing with public domain matters, especially if your creative work is intended for commercial use or distribution.

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