Understanding the Public Domain
Posted on August 18, 2022
The Public Domain or PD is expanding, admittedly at a rather slow rate (thanks, Sonny Bono!) but it is growing. 2020 marked a monumental year, for oh so many reasons, but for copyright and the public domain it meant that for the first time in a good long while, the expiry of copyright terms led to the expansion of the public domain. But what exactly is the Public Domain and why does it matter?
Public Domain refers to creative materials that are not protected by intellectual property law. If you remember from our previous post, intellectual property law refers to copyright, trademark, patent, and trade secrets. The public owns the works in the PD rather than an individual creator, artist, author, etc. Works in the PD can be used without permission (because they aren’t owned) and cannot retroactively be “protected.”
Like with copyright, owning the rights to a work is not the same thing as owning the physical work. For example, while the Mona Lisa is considered a PD image, it is owned by the Louvre. No one can go and just take the physical painting or claim ownership. When you purchase a poster of the Mona Lisa you own the poster not the rights to the painting.
The same principle applies to books. You can purchase a copy of Harry Potter and the Sorcerer's Stone from your local bookstore, but you do not own the rights to that work meaning you can’t make sequels or prequels using characters or scenes from the work. You own a single copy of that work.
Remember that copyright applies to a specific bundle of rights that only the creator of the work can utilize such as making copies, distributing, adapting, making money, etc. These rights can be transferred in part or in whole to another person or entity (like when a publisher is allowed to distribute a work and potentially make money from it). There are licenses that extend the “all rights reserved” or copyright to “some rights reserved.” These licenses are essentially granting specific permissions of use. And of course, there is the fair use exemption which allows for particular uses of a copyright-protected work. Works in the Public Domain are outside all of this. There are no rights reserved which means you can make copies, adapt, distribute, transform, make money, perform, etc.
Again, works in the PD don’t require permission for use; any type of use is permissible. Which brings us back round to 2020 and why it was such an important year for the Public Domain. On January 1, 2020 works from 1923 entered the PD. This followed several years without copyright expiration. Thanks to the increase in length of copyright terms (a jump from 50 years post-death of the creator to 70 years post-death) which was largely through the work of the Disney Corporation and Sonny Bono in order to protect Mickey Mouse. 2020 meant that a large number
of works from the 20th century became usable, which includes a significant number of what are known as orphan works (or works without a clear copyright holder).
Many argue that a robust and expanding public domain increases creativity and knowledge while others disagree. What do you think