In the realm of U.S. copyright law, 2019 was a significant year because it marked the first time in twenty years that works first published in the United States entered the public domain. For more than twenty years, January 1, 1923, had been the marker from which copyright term expiration had been measured, and now that date has moved to January 1, 1924. A long list of culturally and historically significant works were welcomed into the public domain this year, including works by Robert Frost, films by Cecil B. DeMille, and music by Noel Coward.
What is the Public Domain?
The public domain refers to three primary categories of works:
- works for which the term of copyright protection defined by law has expired;
- works that are ineligible for copyright protection by law (e.g., works of the federal government); and
- works dedicated to the public domain by the creator, such as by a Creative Commons license.
It is important not to confuse accessibility of a work with its copyright protection status. For example, the availability of a work freely online does not mean that it is in the public domain. Content found publicly and freely online is also eligible for copyright protection and should not be considered in the public domain unless its term of copyright has expired or the work is ineligible for copyright protection by law.
The length of the term of protection has varied over the years as the requirements of the U.S. Copyright Act have changed. Under current law, the term of copyright protection is most simply understood as the life of the creator plus 70 years without any action on the part of the creator (e.g., notice, registration) to secure that term of protection. However, under earlier iterations of the Copyright Act, the term of protection may have been shorter or longer depending upon whether the requirements of notice, registration, and renewal were complied with by the copyright holder. The Public Domain Chart, maintained by the library at Cornell University, is an excellent resource for understanding the existence of these formalities over time and initially determining the possible copyright status of a work.
(Re)Using Works in the Public Domain
Works in the public domain should be sought out for use in teaching, publishing, and research. They can be freely used without need for permissions or payment of royalties or consideration of any exceptions to the Copyright Act such as fair use. However, other legal considerations such as right of publicity or other intellectual property such as trademark may need to be considered.
Further, be wary of persons or entities who attempt to require permission or charge royalties for reusing public domain works that they have in their possession or collection. This is a practice that constitutes “copyfraud.”
False copyright claims made through misleading copyright notices and exaggerated copyright warnings are, basically, copyright abuse. And once you start looking, you’ll see it everywhere.Read
Libraries often mistakenly and innocently engage in copyfraud when extending permissions or charging copyright fees for duplicating public domain materials found in their special collections or archives. Libraries should be cautious to not hold themselves out as having authority to grant reuse permissions when such authority does not exist and not label fees charged to recoup the overhead costs for duplication and dissemination as “copyright” fees where the works in question are in the public domain.
Finding Public Domain Works
There are many resources available for locating works in the public domain. Below is not an exhaustive list:
- Atla Digital Library (refer to individual item’s rights statement)
- Flickr Public Domain
- NYPL Public Domain Collection
- Wiki Public Domain Image Resources
- Internet Archive Audio Collection
- Choral Public Domain Library
- Library of Congress National Jukebox
- Project Gutenberg Recorded Music Collection
Duke University Law School Professor James Boyle authored the book “The Public Domain: Enclosing the Commons of the Mind” and has made it available free online in a variety of formats. http://www.thepublicdomain.org/download/
Prefer to learn more about the public domain in comic form? Check out “Bound by Law.” http://www.thepublicdomain.org/comic/
“Is It in the Public Domain?” is a great handbook put together by the UC Berkeley School of Law with useful flowcharts for helping understand the various formalities of copyright over the years and how they have impacted the calculation of the term of copyright protection for U.S. works. https://www.law.berkeley.edu/files/FINAL_PublicDomain_Handbook_FINAL(1).pdf
The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.
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