Public Domain: What Is It?

Public domain. The term makes me think of a sprawling public space, like Boston Common, except instead of being covered in grass, dog poo, and panhandlers, it’s covered in ideas. Piles of books, stacks of DVDs, painted canvases spreading as far as the eye can see, all for the taking. And in essence, this image is a somewhat accurate manifestation of what public domain actually is.

So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.

As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?

The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.

The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)

Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed

Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed

Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary

So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).


*COPYRIGHT EXCEPTIONS
Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.

FOR FURTHER READING
Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act: http://www.copyrightextension.com/page01.html