The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired,[1] been forfeited,[2] expressly waived, or may be inapplicable.[3] Because no one holds the exclusive rights, anyone can legally use or reference those works without permission.
As examples, the works of William Shakespeare, Ludwig van Beethoven, Miguel de Cervantes, Zoroaster, Lao Zi, Confucius, Aristotle, L. Frank Baum, Leonardo da Vinci and Georges Mlis are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired.[1] Some works are not covered by a country's copyright laws, and are therefore in the public domain; for example, in the United States, items excluded from copyright include the formulae of Newtonian physics and cooking recipes.[4] Other works are actively dedicated by their authors to the public domain (see waiver); examples include reference implementations of cryptographic algorithms,[5][6][7] and the image-processing software ImageJ (created by the National Institutes of Health).[8] The term public domain is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".
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As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country. The term public domain may also be interchangeably used with other imprecise or undefined terms such as the public sphere or commons, including concepts such as the "commons of the mind", the "intellectual commons", and the "information commons".[9]
Although the term domain did not come into use until the mid-18th century, the concept can be traced back to the ancient Roman law, "as a preset system included in the property right system".[10] The Romans had a large proprietary rights system where they defined "many things that cannot be privately owned"[10] as res nullius, res communes, res publicae and res universitatis.[11] The term res nullius was defined as things not yet appropriated.[12] The term res communes was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean."[10] The term res publicae referred to things that were shared by all citizens, and the term res universitatis meant things that were owned by the municipalities of Rome.[10] When looking at it from a historical perspective, one could say the construction of the idea of "public domain" sprouted from the concepts of res communes, res publicae, and res universitatis in early Roman law.[10]
When the first early copyright law was originally established in Britain with the Statute of Anne in 1710, public domain did not appear. However, similar concepts were developed by British and French jurists in the 18th century. Instead of "public domain", they used terms such as publici juris or proprit publique to describe works that were not covered by copyright law.[13]
The phrase "fall in the public domain" can be traced to mid-19th-century France to describe the end of copyright term. The French poet Alfred de Vigny equated the expiration of copyright with a work falling "into the sink hole of public domain"[14] and if the public domain receives any attention from intellectual property lawyers it is still treated as little more than that which is left when intellectual property rights, such as copyright, patents, and trademarks, expire or are abandoned.[9] In this historical context Paul Torremans describes copyright as a, "little coral reef of private right jutting up from the ocean of the public domain."[15] Copyright law differs by country, and the American legal scholar Pamela Samuelson has described the public domain as being "different sizes at different times in different countries".[16]
In most countries the term of protection of copyright expires on the first day of January, 70 years after the death of the latest living author. The longest copyright term is in Mexico, which has life plus 100 years for all deaths since July 1928.
A notable exception is the United States, where every book and tale published before 1929 is in the public domain; US copyrights last for 95 years for books originally published between 1929 and 1978 if the copyright was properly registered and maintained.[21]
People have been creating music for millennia. The first musical notation system, the Music of Mesopotamia system, was created 4,000 years ago. Guido of Arezzo introduced Latin musical notation in the 10th century.[22] This laid the foundation for the preservation of global music in the public domain, a distinction formalized alongside copyright systems in the 17th century. Musicians copyrighted their publications of musical notation as literary writings, but performing copyrighted pieces and creating derivative works were not restricted by early copyright laws. Copying was widespread, in compliance with the law, but expansions of those laws intended to benefit literary works and responding to commercial music recording technology's reproducibility have led to stricter rules. Relatively recently, a normative view that copying in music is not desirable and lazy has become popular among professional musicians.[original research?]
The Musopen project records music in the public domain for the purposes of making the music available to the general public in a high-quality audio format. Online musical archives preserve collections of classical music recorded by Musopen and offer them for download/distribution as a public service.
Derivative works include translations, musical arrangements, and dramatizations of a work, as well as other forms of transformation or adaptation.[27] Copyrighted works may not be used for derivative works without permission from the copyright owner,[28] while public domain works can be freely used for derivative works without permission.[29][30] Artworks that are public domain may also be reproduced photographically or artistically or used as the basis of new, interpretive works.[31] Works derived from public domain works can be copyrighted.[32]
Once works enter into the public domain, derivative works such as adaptations in book and film may increase noticeably, as happened with Frances Hodgson Burnett's novel The Secret Garden, which became public domain in the US in 1977 and most of the rest of the world in 1995.[33] By 1999, the plays of Shakespeare, all public domain, had been used in more than 420 feature-length films.[34] In addition to straightforward adaptation, they have been used as the launching point for transformative retellings such as Tom Stoppard's Rosencrantz and Guildenstern Are Dead and Troma Entertainment's Tromeo and Juliet.[35][36][37] Marcel Duchamp's L.H.O.O.Q. is a derivative of Leonardo da Vinci's Mona Lisa, one of thousands of derivative works based on the public domain painting.[29] The 2018 film A Star is Born is a remake of the 1937 film of the same name, which is in the public domain due to an unrenewed copyright.[38]
In some countries, certain works may never fully lapse into the public domain. In the United Kingdom, for example, there is a perpetual crown copyright for the Authorized King James Version of the Bible.[39]
While the copyright has expired for the Peter Pan works by J. M. Barrie (the play Peter Pan, or the Boy Who Wouldn't Grow Up and the novel Peter and Wendy) in the United Kingdom, it was granted a special exception under the Copyright, Designs and Patents Act 1988 (Schedule 6)[40] that requires royalties to be paid for commercial performances, publications and broadcasts of the story of Peter Pan within the UK, as long as Great Ormond Street Hospital (to whom Barrie gave the copyright) continues to exist.
In a paying public domain regime, works that have entered the public domain after their copyright has expired, or traditional knowledge and traditional cultural expressions that have never been subject to copyright, are still subject to royalties payable to the state or to an authors' association. The user does not have to seek permission to copy, present or perform the work, but does have to pay the fee. Typically the royalties are directed to support of living artists.[41]
Works created before the existence of copyright and patent laws also form part of the public domain. For example, the Bible and the inventions of Archimedes are in the public domain. However, translations or new formulations of these works may be copyrighted in themselves.[citation needed]
In most other countries that are signatories to the Berne Convention, copyright term is based on the life of the author, and extends to 50 or 70 years beyond the death of the author. (See List of countries' copyright lengths.)
The Reiss-Engelhorn-Museen, a German art museum, brought a suit against Wikimedia Commons in 2016 for photographs uploaded to the database depicting pieces of art in the museum. The museum claimed that the photos were taken by their staff, and that photography within the museum by visitors was prohibited. Therefore, photos taken by the museum, even of material that itself had fallen into the public domain, were protected by copyright law and would need to be removed from the Wikimedia image repository. The court ruled that the photographs taken by the museum would be protected under the German Copyright Act, stating that since the photographer needed to make practical decisions about the photograph that it was protected material. The Wikimedia volunteer was ordered to remove the images from the site, as the museum's policy had been violated when the photos were taken.[46] 152ee80cbc
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