What “public domain” really means

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use.

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Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use. Before I explain what “public domain” means, you first need a copyright refresher.

Copyright in a nutshell

Copyright is essentially a bundle of exclusive rights a copyright owner has in content. A copyright owner’s exclusive rights usually include –

  • reproducing the content;
  • selling the content;
  • publishing previously unpublished content;
  • transmitting content; and
  • creating adaptations of content.

As a general rule, someone who doesn’t have the copyright owner’s permission can’t exercise those rights. There are exceptions to copyright infringement and one of the better known set of exceptions is known as “fair dealing” in South African law. Aside from that, you need the copyright owner’s permission to use her content. One way you can obtain permission is through a license which is basically a set of permissions.

If you’d like to dive into South African copyright law and many of its challenges, the 2008 Open Copyright Review is a good place to start (I made a small contribution). The Open Copyright Review introduces copyright law slightly differently and with a useful perspective:

Copyright is a right created by the Copyright Act, to give exclusive rights to an intellectual creation. Because it excludes people from certain uses, the rights are referred to as exclusive rights. Copyright is a statutory incentive scheme. Copyright law gives exclusive rights, usually to the creator of an intellectual creation, so that she can allow others to make copies or modifications of the intellectual creation in exchange for money or some other benefit. The primary benefit conferred by a property right is the use and enjoyment of the property such as a car, rather than the ability to exclude others, although it might necessitate the exclusion of others only in order to secure use and enjoyment of the car. However intellectual property rights consist solely of the right to exclude others.

Copyright protects “works” and different works enjoy protection for different time periods. Copyright term in South Africa is usually 50 years which runs from different dates depending on the nature of the work. For example, copyright in a book operates for the author’s life and for about 50 years after the author’s death. Other countries may have different copyright terms and this can be both troubling and controversial. The United States has extended copyright protection terms so much that very few works are actually falling into the public domain (a tease). This is problematic. Copyright is not intended to protect works forever but is rather supposed to be used to protect innovation and creativity for a limited time period after which time they are to be surrendered to the broader Commons for everyone’s benefit. Unfortunately copyright protection has been corrupted by content owners but that is another discussion entirely.

Public domain

When a work reaches the end of its copyright protection, it loses that protection and falls into the public domain. The Creative Commons wiki has a nice explanation of what the “public domain” is and how it works:

When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way.

The US Copyright Office has another helpful explanation:

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

What “public domain” means is that the work’s copyright protection term has expired and the copyright owner’s rights have similarly expired. The work is then freely available for anyone to use in any way. This is different to content licensed under open licenses like Creative Commons licenses (this came up recently in the Woolworths hummingbird controversy) where those works still enjoy copyright protection but the copyright owner has chosen to grant fairly broad licenses permitting other people to use the works in different ways.

If you have found content online, the odds are that the content is not in the public domain, even if it is publicly accessible. You still have to check whether it is licensed for your intended use. The general rule is that if you don’t see any indication of how content is licensed, you have to assume the copyright owner has reserved all of her exclusive rights for herself and your ability to use that content is limited.

Fortunately search engines generally have options to search for content that is available under more permissive licenses in advanced search. Here are Google’s search options, for example:

Another terrific resource for images is Flickr Commons which is a growing collection of images which are in the public domain and have been made available to Flickr for its users’ benefit.

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p>Creative Commons has also come up with a way for copyright owners to release their works into the public domain before their copyright protection terms have come to an end. It isn’t so much a license as it is a renunciation and it is an interesting approach.

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