The term “public domain” refers to creative materials that are no longer protected by intellectual property rights such as copyright, trademark, or patent. Here we will be focusing on public domain in relation to copyright. These works are no longer owned by any individual, and now belong to the public. Anyone can use a public domain work without having to seek authorisation, but no one can ever own it.
Take into account that while each individual work might belong to the public, collections of public domain works may be protected by copyright. If, for example, someone has collected public domain images in a book or on a website, the collection as a whole may be protectable even though individual images are not. You are free to copy and use individual images but copying and distributing the complete collection may infringe what is known as the “collective works” copyright. A collection of public domain materials will be protected if the person who created it has used creativity in the choices and organisation of the material.
The Public Domain covers the following categories of material:
- Works on which copyright protection has expired. Copyright in a work in Europe lasts for 70 years after the death of its longest living creator. If copyright is held by a corporation, then it lasts for 70 years after publication. Once this temporary protection has come to its end, the work will fall into public domain. It means that almost everything published, painted, photographed or released before the 20th century is out of copyright and in the Public Domain.
- Some works are not covered by copyright. Works are not protected by copyright if they are not original. Ideas and facts are not covered by copyright, but the expression of them is. Laws and judicial and administrative decisions are excluded from this protection. Phrases such as “Beam me up” are not protected under copyright law. Short phrases, names, titles, or small groups of words are considered common idioms of the English language (or language to be considered) and are free for anyone to use. However, a short phrase used as an advertising slogan is protectable under trademark law.
- The copyright owner failed to follow copyright renewal rules (specific to the US). Thousands of works published in the United States before 1964 fell into the public domain because the copyright was not renewed in time under the law in effect then. If a work was first published before 1964, the owner had to file a renewal with the Copyright Office during the 28th year after publication. No renewal meant a loss of copyright. If you plan on using a work that was published before 1964, you should research the records of the Copyright Office to determine if a renewal was filed.
- The copyright owner deliberately placed it in the public domain. If, upon viewing a work, you see words such as, “This work is dedicated to the public domain,” then it is free for you to use. Sometimes an author deliberately chooses not to protect a work and dedicates the work to the public. This type of dedication is rare, and unless there is express authorisation placing the work in the public domain, do not assume that the work is free to use.
Be careful with the expiration date. Indeed, copyright legislations are not harmonised worldwide. The term of protection granted by copyright laws varies from country to country (50, 70, 80 years past the author's death, sometimes other time limits linked to the publication date such as the 95-year limit in the US) but may also vary, within one same jurisdiction, depending on the date of publication of the works, on subsequent legislation changes (legislation applying to works published after XXXX, or to authors who died before XXXX, creating different regimes applicable in parallel), and sometimes on specific exceptions/extensions (e.g. extensions linked to exceptional events such as wars). As the term of protection varies, so does the list of works entering the public domain at a given time from one jurisdiction to the other - this is a topic that can give rise to a lot of complexity.
Hence, it is not farfetched to have a work part of the public domain in the US, while still being protected by copyright in European countries. This is for instance the case of the first books written by Agatha Christie in the early 1920s, which are already part of the public domain in the US but remain protected in Europe until 1st January 2047 (70 years after her death). In practice, this means that a publisher would be free to publish and sell those works in the US without permission from the rightholders (Christie's heirs) but would need authorisation (and to pay royalties, presumably) to do so in Europe.