Module 7: Public Domain

Module 7: Public Domain

In Module 2, we discussed that in order for an item to be eligible to be an open educational resource it has to be openly licensed or in the public domain. Through module 3 to module 5, we learned what it means to be released with an open license and how to apply it to your work. In this module, we will discuss public domain.

Public Domain icon

What is the Public Domain?

A public domain work is a creative work that is not protected by copyright, which means it’s free for you to use without permission. Works in the public domain are those whose intellectual property rights have expired, have been forfeited, or are inapplicable.

Examples include the works of Shakespeare and Beethoven, The King James Bible, most of the early silent films, the formulae of Newtonian physics, and the patents on powered flight (this paragraph is from Wikipedia, Public domain, CC BY-SA).

Why does something fall into the public domain?

Case 1: The term of copyright for the work has expired.

As a general rule, most works enter the public domain because of old age. This includes any work published in the United States before 1923 or works published before 1964 for which copyrights were not renewed (Renewal was a requirement for works published before 1978). (this paragraph is from The Public Domain by the Board of Trustees of the Leland Stanford Junior University, CC BY-NC).

Case 2: It never had copyright protection.

It never had copyright protection or its protection was lost. A smaller group of works fell into the public domain because they were published without a copyright notice, which was necessary for works published in the United States before March 1, 1989. Thus, if a work published before March 1, 1989 and did not carry a copyright notice, it  is in the public domain.

Case 3: The work was explicitly donated to the public domain.

Some works are in the public domain because the owner has indicated a desire to give them to the public without copyright protection.

Case 4: The work is a work of the U.S. Government.

Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries (US Copyright office). In the United States when copyrighted material (created by the federal government) is enacted into the law it enters the public domain. Thus, building codes, when enacted, are in the public domain. Works produced by third party contractors with the government may be protected under copyright law based on the contract terms (Text in this paragraph is from Wikipedia, Public domain, CC BY-SA).

How do I determine if a work is in the Public Domain?

1. Locate the work’s publication date and see if it is published before 1923. If it is, the work is automatically placed in public domain. Some examples in this category include:

(Examples from Wikihow, How to Find Public Domain Materials, CC-BY)

2.Research books that were published between 1923 and Jan 1, 1964. 90% of books during this period are not copyrighted, since their copyright holders failed to extend their copyright. Review the copyright renewal database for details.

3. Determine whether the work is eligible for public domain status. If it is a work of the US government and other government agencies, the work may be considered to be in public domain. Some good examples:

(Examples from Wikihow, How to Find Public Domain Materials, CC-BY).

4. If none of the above cases are met, you will have to do research to determine whether the work in question is in public domain. Please use the guidelines found in Copyright Term and the Public Domain in the United States, developed by Peter Hirtle at Cornell University. This provides an extensive guide for determining if a work is in the public domain.

What is the difference between public domain and open license?

It is important to understand the difference between public domain and open license (such as Creative Commons licenses). They both grant free access to the materials, but the scope and nature are completely different.

Open licensing does recognize a clear ownership of an intellectual property, whereas the intent of public domain is for the copyright holder to waive copyright ownership in the work. Therefore, users are required to attribute the work to the original authors when using openly licensed materials.

In a way, public domain is the purest form of open/free, since no one owns or controls the material in any way (this sentence is from Public DomainCC-BY).

Please see the table below to see the difference between public domain and open license.

Open License All Rights Reserved Copyright
Copyright ownership retained. Copyright ownership retained.
Author grants rights in advance. Author does NOT grant rights to the public.
“It is mine but I do allow you to take my material. No need to ask for my permission to use it because it is already granted -just be sure to make proper attribution to me.” “It is mine. I do NOT allow you to take this material and repurpose it. You definitely need to ask for my permission to use it.”

 

If you want more in-depth discussion about public domain, please read Public Domain by James Boyle. And you suspected right– this book is CC licensed (CC-BY-NC-SA), meaning that you can download the entire book for free.

Please also see the CC licensed comic created to simplify the concept and make it fun at http://web.law.duke.edu/cspd/comics/zoomcomic.html

Please see the table below to see the difference between open license, public domain and all rights reserved copyright.

 

Public Domain Open License All Rights Reserved Copyright
Copyright ownership waived. Copyright ownership retained. Copyright ownership retained.
Author gives away rights to the public. Author grants rights in advance. Author does NOT grant rights to the public.
It is not mine. I give up my right as an author. You don’t even have to cite me although I would appreciate it. It is mine but I do allow you to take my material. No need to ask for my permission to use it because it is already granted -just be sure to make proper attribution to me. It is mine. I do NOT allow you to take this material and repurpose it. You definitely need to ask for my permission to use it.
Most open. Most closed.

The content in the table above is also available as an infographic.

 

 

Last updated: 01 03 2017