Public domain

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The public domain is a range of abstract materials — commonly referred to as intellectual property — which are not owned or controlled by anyone. The term indicates that these materials are therefore "public property", and available for anyone to use for any purpose. The public domain can be defined in contrast to several forms of intellectual property; the public domain in contrast to copyrighted works is different from the public domain in contrast to trademarks or patented works. Furthermore, the laws of various countries define the scope of the public domain differently, making it necessary to specify which jurisdiction's public domain is being discussed.

The public domain is most often discussed in contrast to works whose use is restricted by copyright. Under modern law, most original works of art, literature, music, etc. are covered by copyright from the time of their creation for a limited period of time (which varies by country). When the copyright expires, the work enters the public domain. It is estimated that currently, of all the books found in the world's libraries, only about 15% are in the public domain, even though only 10% of all books are still in print; the remaining 75% are books which remain unavailable because they are still under copyright protection.[1]

The public domain can also be defined in contrast to trademarks. Names, logos, and other identifying marks used in commerce can be restricted as proprietary trademarks for a single business to use. Trademarks can be maintained indefinitely, but they can also lapse through disuse, negligence, or widespread misuse, and enter the public domain. It is possible, however, for a lapsed trademark to become proprietary again, leaving the public domain.

The public domain also contrasts with patents. New inventions can be registered and granted patents restricting others from using the inventions without permission from the inventor. Like copyrights, patents last for a limited period of time, after which the inventions covered by them enter the public domain and can be used by anyone.

Contents

No legal restriction on use

A creative work is said to be in the public domain if there are no laws which restrict its use by the public at large. For instance, a work may be in the public domain if no laws establish proprietary rights over the work, or if the work or its subject matter are specifically excluded from existing laws.

Because proprietary rights are founded in national laws, an item may be public domain in one jurisdiction but not another. For instance, some works of literature are public domain in the United States but not in the European Union and vice versa.

The underlying idea that is expressed or manifested in the creation of a work generally cannot be the subject of copyright law (see idea-expression divide). Mathematical formulæ will therefore generally form part of the public domain, to the extent that their expression in the form of software is not covered by copyright; however, algorithms can be the subject of a software patent in some jurisdictions.[2][3]

Works created before the existence of copyright and patent laws also form part of the public domain. The Bible and the inventions of Archimedes are in the public domain. However, copyright may exist in translations or new formulations of these works.

Although "intellectual property" laws are not designed to prevent facts from entering the public domain, collections of facts organized or presented in a creative way, such as categorized lists, may be copyrighted. Collections of data with intuitive organization, such as alphabetized directories like telephone directories, are generally not copyrightable. In some countries copyright-like rights are granted for databases, even those containing mere facts. A sui generis database rights regime is in place in the European Union.

Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries.[4] They may also be in the public domain in other countries as well. "It is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work."

Expiration

All copyrights and patents have always had a finite term, though the terms for copyrights and patents differ. When terms expire, the work or invention is released into public domain. In most countries, the term for patents is 20 years. A trademark registration may be renewed and remain in force indefinitely provided the trademark is used, but could otherwise become generic.

United States law

Copyright law in the United States has changed several times. Although it is held under Feist v. Rural that Congress does not have the power to re-copyright works that have fallen into the public domain, re-copyrighting has happened: "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain, principally by aliens of countries with which we had been at war."[5]

Works created by an agency of the United States government are public domain at the moment of creation.[6] Examples include military journalism, federal court opinions (but not necessarily state court opinions), congressional committee reports, and United States census data. However, works created by a contractor for the government are still subject to copyright. Even public domain documents may have their availability limited by laws limiting the spread of classified information.

Since 1978

Before 1978, unpublished works were not covered by the federal copyright act. Rather, they were covered under (perpetual) common law copyright. The Copyright Act of 1976, effective 1978, abolished common law copyright in the United States so that all works, published or unpublished, are now covered by federal statutory copyright, with the exception of sound recordings fixed before February 15, 1972. The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.[7] If the work was created before 1978 but first published 1978–2002, the federal copyright will not expire before 2047.

Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress within five years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.

Disclaimer of interest

Laws may make some types of works and inventions ineligible for monopoly; such works immediately enter the public domain upon publication. Many kinds of mental creations, such as publicized baseball statistics, are never covered by copyright. However, any special layout of baseball statistics, or the like, would be covered by copyright law. For example, while a phonebook is not covered by copyright law, any special method of laying out the information would be.

Another example would be Charles Darwin's theory of evolution. Being an abstract idea it has therefore never been patentable. After Darwin constructed his theory, he did not disclose it for over a decade. He could have kept his manuscript in his desk drawer forever but once he published the idea, the idea itself entered public domain. However, the carrier of his ideas, in the form of a book titled The Origin of Species, was covered by copyright (though, since he died in 1882, the copyright has since expired).

Copyright

In the past, in some jurisdictions such as the United States, a work would enter the public domain with respect to copyright if it was released without a copyright notice. This was true prior to March 1, 1989 (according to the USA Copyright office), but is no longer the case. Any work (of certain, enumerated types) receives copyright as soon as it is fixed in a tangible medium.

It is commonly believed by non-lawyers that it is impossible to put a work into the public domain. Although copyright law generally does not provide any statutory means to "abandon" copyright so that a work can enter the public domain, this does not mean that it is impossible or even difficult, only that the law is somewhat unclear. Congress may not have felt it necessary to codify this part of the law, because abandoning property (like a tract of land) to the public domain has traditionally been a matter of common law, rather than statute. (Alternatively, because copyright has traditionally been seen as a valuable right, one which required registration to achieve, it would not have made sense to contemplate someone abandoning it in 1976 and 1988.)

Case law

Another form of support comes from the seminal case Computer Associates Int'l v. Altai, 982 F.2d 693. This case set the standard for determining copyright infringement of computer software and is still followed today. Moreover, it was decided by the Second Circuit appellate court, which is famous for handing down some of the most well-reasoned American copyright decisions. In this case, it discusses the public domain.

Patent

With regard to patents, on the other hand, public use or publishing the details of an invention before applying for a patent will generally place an invention in the public domain and (in theory) prevent its subsequent patenting by anyone — an effective disclaimer. For example, a chemistry journal publishing a formula prevents patenting the formula by anyone. This tactic was commonly used by Bell Labs. The famous Bell Labs Technical Journal was sent free of charge to the library of the U.S. Patent Office to establish a base of prior art without the inconvenience, cost, and hassle of filing patent applications for inventions of no immediate monetary value. (Unix was famously described in this journal.) This is sometimes called "defensive disclosure" — one way to make sure you are not later accused of infringing a patent on your own invention. There is an exception to this rule, however: in U.S. (not European) law, an inventor may file a patent claim up to one year after publishing a description (but not, of course, if someone else published or used it first).

In practice, patent examiners only consider other patents and the books they have in their library for prior art, largely because the patent office has an elaborate classification system for inventions. This means that an increasing number of issued patents may be invalid, based upon prior art that was not brought to the examiner's attention. Once a patent is issued, it is very expensive to invalidate. Publishing a description on a website as a preemptive disclosure does very little in a practical sense to release an invention to the public domain; it might still be considered "patentable", although erroneously. However, anyone aware of an omitted prior art citation in an issued patent may submit it to the US Patent Office and request a "reexamination" of the patent during the enforceable period of the patent (that is, its life plus statute of limitations). This may result in loss of some or all of the patent on the invention, or it may backfire and actually strengthen the claims.

An applicant may also choose to file a Statutory Invention Registration, which has the same effect as a patent for prior art purposes. These SIRs are relatively expensive. These are used strategically by large companies to prevent competitors from obtaining a patent.

Section 102(c) says that an invention that has been "abandoned" cannot be patented. There is precious little case-law on this point. It is largely a dead letter.

Trade secret

If guarded properly, trade secrets are forever. A business may keep the formula to Coca-Cola a secret. However, once it is disclosed to the public, the former secret enters public domain, although an invention using the former secret may still be patentable in the United States if it is not barred by statute (including the on-sale bar).

Some businesses choose to protect products, processes, and information by guarding them as trade secrets, rather than patenting them. Hershey Foods, Inc., for example, does not patent some of its processes, such as the recipe for Reese's, but rather maintains them as trade secrets, to prevent competitors from easily duplicating or learning from their invention disclosures, or from using the information after the patent lapses.

One risk, however, is that anyone may reverse engineer a product and thus discover (and copy and publish) all of its secrets, to the extent they are not covered by other laws (e.g. contract).

Trademark

A trademark registration is renewable. If a trademark owner wishes to do so, he may maintain a registration indefinitely by paying renewal fees, using the trademark and defending the registration.

However, a trademark or brand can become unenforceable if it becomes the generic term for a particular type of product or service — a process called "genericide." If a mark undergoes genericide, people are using the term generically, not as a trademark to exclusively identify the particular source of the product or service. One famous example is "thermos" in the United States.

Because trademarks are registered with governments, some countries or trademark registries may recognize a mark, while others may have determined that it is generic and not allowable as a trademark in that registry. For example, the drug "acetylsalicylic acid" (2-acetoxybenzoic acid) is better known as aspirin in the United States — a generic term. In Canada, however, "aspirin" is still a trademark of the German company Bayer. Bayer lost the trademark after World War I, when the mark was sold to an American firm. So many copy-cat products entered the marketplace during the war that it was deemed generic just three years later.[8]

Terms can be deemed "generic" in two ways. First, any potential mark can be deemed "generic" by a trademark registry, that refuses to register it. In this instance, the term has no secondary meaning that helps consumers identify the source of the product; the term serves no function as a "mark". Second, a mark, already in use, may be deemed generic by a court or registry after the mark is challenged as generic — this is known as "genericide". In this instance, the term previously had a secondary meaning, but lost its source-identifying function.

To avoid "genericide", a trademark owner must balance between trying to dominate the market, and dominating their market to such an extent that their product name defines the market. A manufacturer who invents an amazing breakthrough product which cannot be succinctly described in plain English (for example, a vacuum-insulated drinking flask) will likely find its product described by the trademark ("Thermos"). If the product continues to dominate the market, eventually the trademark will become generic ("thermos").

Trademarks currently thought to be in danger of being generic include iPod, Jell-O, Band-Aid, Rollerblade, Google, Spam, Hoover, and Sheetrock. G

When a trademark becomes generic, it is as if the mark were in the public domain.

Domain name

A domain name never enters public domain in the sense that copyrighted material does. It is closer in nature to a trademark, in that a failure to maintain it makes it available for others to use (with different standards to maintain it from those for a trademark). If another party registers a lapsed domain name, it is no longer available to the public, as would be the case with former intellectual property which has become public domain.

Public domain and the Internet

The term "public domain" is often poorly understood and has created significant legal controversy. Historically, most parties attempting to address public domain issues fell into two camps:

  1. Businesses and organizations who could devote staff to resolving legal conflicts through negotiation and the court system.
  2. Individuals and organizations using materials covered by the fair use doctrine, reducing the need for substantial governmental or corporate resources to track down individual offenders.

With the advent of the Internet, however, it became possible for anybody with access to this worldwide network to "post" copyrighted or otherwise-licensed materials freely and easily. This aggravated an already established but false belief that if something is available through a free source, it must be public domain. Once such material was available on the net, it could be perfectly copied among thousands or even millions of computers very quickly and essentially without cost.

Freely obtained does not mean free to republish

These factors have reinforced the false notion that "freely obtained" means "public domain." One could argue that the Internet is a publicly available domain, not licensed or controlled by any individual, company, or government; therefore, everything on the Internet is public domain. This specious argument ignores the fact that licensing rights are not dependent on the means of distribution or consumer acquisition. (If someone gives a person stolen merchandise, it is still stolen, even if the receiving party was not aware of it.) Chasing down copyright violations based on the idea that information is inherently free has become a primary focus of industries whose financial structure is based on their control of the distribution of such media.

(Almost) everything written down is copyrighted

Another complication is that publishing exclusively on the Internet has become extremely popular. In countries party to the |Berne Convention, an author's original works are covered by copyright as soon as the work is put into a "fixed" form; no formal copyright notice or registration is necessary. But such laws were passed at a time when the focus was on materials that could not be as easily and cheaply reproduced as digital media, nor did they comprehend the ultimate impossibility of determining which set of electronic bits is original. All Internet postings (including blogs and emails) are copyrighted material unless explicitly stated otherwise.

The distribution of many types of Internet postings (particularly Usenet articles and messages sent to electronic mailing lists) inherently involves duplication. The act of posting such a work can therefore be taken to imply consent to a certain amount of copying, as dictated by the technical details of the manner of distribution. However, it does not imply total waiver of copyright.

Furthering the public domain with the Internet

Many people are using the Internet to contribute to the public domain, or make works in the public domain more accessible to more people. For example, Wikisource, Project Gutenberg, and LibriVox coordinate the efforts of people who transcribe works in the public domain into electronic form. Some projects exist for the sole purpose of making material available into the public domain or under no-cost licenses. The International Music Score Library Project (IMSLP) is attempting to create a virtual library containing all public domain musical scores, as well as scores from composers who are willing to share their music with the world free of charge. The Eyebeam OpenLab creates software and hardware projects in the public domain, such as the work of the Graffiti Research Lab.

Note that there are many works that are not part of the public domain, but for which the copyright owner has chosen either to not enforce those rights, or to grant some subset of those rights to the public. For example, the Free Software Foundation creates copyrighted software and licenses it without charge to the public for most uses under the GNU General Public License, forbidding only proprietary redistribution. Sometimes such work is incorrectly referred to as "public domain" in informal speech.

Note also that while some works (especially musical works) may be in the public domain, international law considers performances or some transcriptions of those works to be derivative works, subject to their own copyrights. Similarly, a film adaptation of a public-domain story (such as a fairy tale or a classic work of literature) would be covered by copyright law.

See also

References

  • Fishman, Stephen, The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More. ISBN 0-87337-433-9
  1. ↑ Kevin Kelly. Scan this Book!, New York Times, 14 May 2006.
  2. ↑ Patentability of Mathematical Algorithms under US Manual of Patent Examining Procedure
  3. ↑ USPTO Notice of Public Hearings and Request for Comments on Patent Protection for Software-Related Inventions 1994
  4. ↑ Copyright Office Basics: Publications Incorporating U.S. Government Works
  5. ↑ Testimony of Dorothy Schrader, general counsel of the U.S. copyright office, hearing for House Resolution 1623, serial 100/50.
  6. ↑ Subject matter and scope of copyright
  7. ↑ Duration of Copyright
  8. ↑ Aspirin, World of Molecules

External links

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