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 copyright has expired.

Copyright has expired for all works published in the United States before 1923. In other words, if the work was published in the U.S. before January 1, 1923, you are free to use it in the U.S. without permission.

Case 2: The copyright owner failed to follow copyright renewal rules.

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.

Case 3: The copyright owner deliberately places the work in the public domain.

Sometimes an author deliberately chooses not to protect a work and dedicates the work to the public. 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.  This type of dedication is rare, and unless there is express authorization placing the work in the public domain, do not assume that the work is free to use.

Case 4: Copyright law does not protect certain works.

Short Phrases. Phrases such as, “Show me the money” or, “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 and are free for anyone to use.

Facts and Theories. For example, the fact that a comet will pass by the Earth in 2027—is not protected by copyright. If a scientist discovered this fact, anyone would be free to use it without asking for permission from the scientist.

U.S. Government Works. In the U.S., any work created by a federal government employee or officer is in the public domain, provided that the work was created in that person’s official capacity. Keep in mind that this rule applies only to works created by federal employees and not to works created by state or local government employees.

Above content is from The Public Domain by Rich Stim, Copyright & Fair Use, Standford University Libraries, CC BY-NC.

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.

5. Keep in mind that there are a number of websites that purport to curate openly licensed images and content yet aren’t legitimate. It is wise to approach the site just as you would individual works. Ask yourself if the site covers all the considerations we’ve mentioned above for the works it shares.

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).

Public Domain vs Open License

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

Public Domain Open License
Copyright ownership is waived. Copyright ownership retained.
Author gives away rights to the public to reproduce and distribute creative work. Author grants broad rights to the public to reproduce and distribute creative work.

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

Difference between Public Domain, Open License, and All Rights Reserved Copyright

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: 09 26 2017