ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

Spotlight On: Works In The Public Domain Explained

Updated on August 19, 2015
Source

Published June 1, 2014

by Rachael O'Halloran

Disclaimer: Since the United States is my country of origin, the information in this hub will be based on United States copyright laws. There are several lawsuits pending in lower courts and one in the Supreme Court which can change the copyright laws in a year or two. Since governments can be fickle and change copyright rules at whim, the information presented here is current as of today's date. I will do my best to keep it updated as the Supreme Court changes its mind. This hub is not meant as legal advice nor should it be construed as such. Always consult with an intellectual property attorney regarding copyright infringement issues.

A list of public domain resources is available at the end of this hub.

Copyright History

The Berne Convention -1886- chief international governing body for copyrights.

The EU Directive (EU)- 1995 and 2011- binding directive of all European Countries (see list below)

U.S. Copyright Law -2012- law in the United States which governs works created in US

Universal Copyright Convention (UCC)Geneva-1952- France's international copyright treaty before France joined the Berne Convention.

The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT) 1996- international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO)

Universal Copyright Convention (UCC) Paris - 1971 - Paris's international treaty

Sonny Bono Copyright Term Extension Act - 1998 extended copyright terms in the United States

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) -1995- international agreement administered by the World Trade Organization (WTO)-- introduced intellectual property law into the international trading system for the first time

Uruguay Round Agreement Act of the United States (URAA) - 1994- to give United States copyright protection to some works that had previously been in the public domain in the United States.

Digital Millennium Copyright Act (DMCA) 1996- a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO)

Public Domain Enhancement Act. -a US bill that never passed which wanted to impose a tax on anyone who wanted their copyright works to keep a copyright

Public Domain Explained

How do public domain works get into the public domain?

This is when the works of authors are made available to the public, free to use as they choose because 1) the author died within the term associated with their country of origin, 2) their copyrights have expired, or 3) their content is no longer owned by anyone.

Works In The Public Domain Defined

Works refers to any literary or artistic works (ideas, images, sounds, discoveries, facts, texts) that are now free from copyright protection (usually because of death of the author) which are placed in public domain so the public can access them for free (without paying a fee), and to use them in any way they choose without having to obtain permission. This allows for free expression and many creative adaptations of old works into new plays, songs, books or movies.

First Copyright Law in The United States

The first copyright laws were written into the Constitution which declares that copyrights must only be “for limited times” and that Congress can only create exclusive rights to “promote the progress” of knowledge and creativity.

At that time, copyrights lasted 14 years and were renewable for another 14 years only if the author wished to do so. At that time, one's contemporaries could look at your published works and expect that they would be in the public domain within fourteen years.

Copyright Law In The United States

Prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years – an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1958 would enter the public domain on January 1, 2014, where they would be free to use. But that's not going to happen now.

Under the Copyright Act of 1976, all works of the U.S. federal government are part of the public domain. This includes legislation, regulations, legal opinions, hearings, and all sorts of other information about how the government operates and what it produces.

The 1976 Copyright Act changed the rules again to say that copyright lasts for the author’s lifetime, plus another 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication.

After those dates, the works pass into public domain. With that calculation, works by authors who died in 1955 would be available after January 1, 2026. (1955 +70=2025).

The Sonny Bono Copyright Act was signed into law October 27, 1998 and it amends the copyright laws by extending the duration of copyright protection for an additional 20 years. This Act did not affect public domain, just works still under copyrights.

But the rules changed again in 2012.

In 1998 and reaffirmed in 2012, the Supreme Court ruled that Congress can take works out of the public domain and put them back under copyright. This applied an extension retrospectively to existing works, and gave all in-copyright works published between 1923 and 1977 a copyright term of 95 years. Anything published up to 1923 is still public domain in the United States.

Under current copyright law, any published works after 1923 will be in the public domain only after 95 years have passed bringing it up to 2018, so that the work will enter public domain on January 1, 2019. Consequently, those who look forward to Public Domain Day on January 1 every year will be disappointed nearly every January 1 until 2019 because the US government has nothing on the calendar to release into public domain until 2019. :(

In fact, there is even some scuttlebutt that the term will likely be changed again so that more works either go back under copyright or will remain under copyright for longer terms so that "someone" can financially benefit from collecting on the use allowance for the works. I read where there is an effort to track down copyright holders' heirs to see if they would want to hold a copyright and when you think about it, how legal is that? All to make a few dollars. I'm sure the federal government makes a few dollars as well.

They are forgetting the goal of public domain - making works available to the public who otherwise would not be able to afford or have access to these works because of being in private libraries or collections, or because permission would not be granted by the copyright holder for the use. With public domain, any use is all right. Out of public domain, permission must be asked and granted.

This changes the rules in the middle of the game and some are crying foul.

What do you think?

What Is The Berne Convention And What Does It Mean Regarding Copyrights?

The Berne Convention is an international agreement governing all copyrights, foreign and domestic, which was first accepted in Berne, Switzerland, in 1886. The Berne Convention requires its members to recognize the copyright of works of authors from other member countries in the same way as it recognizes the copyright of its own.

In addition to establishing a system of equal treatment that internationalized copyright among its members, the agreement also required member countries to provide strong minimum standards for copyright law. Copyright under the Berne Convention is mandatory to be automatic as soon as one joins the member ranks and one cannot require works to be formally registered for copyright in any place or country.

In the articles of The Berne Convention, all references to country is the author's "country of origin" where the work was published. In The Berne Convention rules, simultaneous means within 30 days. If the work is simultaneously published in several countries, the country with the shortest term of protection is viewed as the country of origin.

The Berne Convention has been revised and updated a number of times: 1896 in Paris, 1908 in Berlin, 1914, 1928 in Rome, 1948 in Brussels, 1967 in Stockholm, and 1971 in Paris.

The United States joined The Berne Convention in 1989. When it joined, it had to abide by the rules and honor the copyright status of every other member country in the Convention. There are 168 member countries.

Can works revert back to copyright after being in the public domain?

Yes, they can now because of a Supreme Court decision which gives Congress certain permissions and alters Section 514 of the U.S. Constitution. The issue of restored copyrights may become a problem with works that were taken out of the public domain and works that have since been created using works that were previously in the public domain.

What is Section 514?

In 2003, the Supreme Court decision of Eldred vs. Ashcroft created Section 514 of the copyright laws which allows Congress to lengthen copyright terms, in retrospect.

Section 514 per the Supreme Court, allows Congress to remove certain works out of the U.S. public domain and grant them copyright protection which they did not have while in public domain, especially foreign works.

Essentially it is taking works that were in the public domain, removing them from free use and placing them under copyright protection because some entity can benefit monetarily from their being under copyright.

Which is what this is mostly about. Making money off of putting works back under copyright so that users will have to ask permission to use them and in some cases, pay a fee for that use.

Those foreign works include those whose terms have not expired in their source countries
and have ended up in the U.S. public domain because of:

  1. noncompliance with U.S. copyright law
  2. lack of subject matter protection for sound recordings fixed before February 15, 1972
  3. lack of national eligibility. 17 U.S.C. § 104A(h)(6) (2006)

This includes large bodies of works for example, all Russian works published before 1973, including works by Vladimir Nabokov, Maxim Gorky, Alexander Solzhenitsyn, and paintings by Pablo Picasso, drawings by M.C. Escher, and writings by such authors as George Orwell, J.R.R. Tolkien, and Virginia Woolf.

All of these works and thousands, if not millions more, were in the public domain before Section 514 came along.

By placing them back under copyright protection, Congress revoked the rights of thousands of users of those works and collectors of public domain works, including the libraries, digital internet databases and archives that could be preserving those works and using new technologies to make them more accessible to the public.

At this point in time, using these works without proper permission or fees will impose copyright infringement against the user.

Copyright terms for unpublished works
Copyright terms for unpublished works
28 countries
28 countries

What Entered Public Domain on January 1, 2014?

There is a small set of unpublished works that were created by authors who died in 1943 and did not register their copyrights with the Copyright Office before 1978. Congress is allowing them to enter U.S. public domain on January 1, 2014.

Because these works were never published, it is very unlikely that the public will even be aware of them when they make their appearance.

Under current copyright laws, no other published works will enter the U.S. public domain until 2019.

What Is The Internet Archive?

The Internet Archive is a public domain digital database of information, books, images, movies and music available for access to researchers, historians, and the general public to historical collections that are in the public domain. Users can sample and clip millions of public domain texts, films and sound recordings.

The Internet Archive is available for free to the general public for whatever the user chooses so they can create derivative works. The Internet Archive has a database of over 2,000 movies available online to the general public for free. Many have been uploaded by individuals who bought the films and have seen they are in the public domain and are within legal rights to upload them.

The Internet Archive also stores digital content from various libraries and universities as well as the federal government. These collections are monitored by the institutions to allow them to organize, catalog and manage their digital content which includes movies, audios, texts, software and archived web content. There are over 1.5 million texts from American libraries.

The Internet Archive uploads over 1,000 digitalized books each day as well as 1,000 reels of microfilm each week. This is done with libraries and other parties who provide the books to be scanned into the Archive. In each case, care is given to make sure the text is truly in the public domain. More than 500,000 books are downloaded each day from The Internet Archive.

Public Domain: Works Registered or First Published in the U.S.

Date of Publication
Works Registered in Copyright Office
Copyright Term
Before 1923
None
In the public domain due to copyright expiration
1923 to 1977
Published without a copyright notice
In the public domain due to failure to comply with required formalities
1978 to 1 March 1989
Published without notice, and without subsequent registration within 5 years
In the public domain due to failure to comply with required formalities
1978 to 1 March 1989
Published without notice, but with subsequent registration within 5 years
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
1923 through 1963
Published with notice and the copyright was renewed
95 years after publication date
1964 through 1977
Published with notice
95 years after publication date
1978 to 1 March 1989
Created after 1977 and published with notice
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
From 1 March 1989 through 2002
Created after 1977
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
From 1 March 1989 through 2002
Created before 1978 and first published in this period
The greater of the term specified in the previous entry or 31 December 2047
After 2002
None
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
http://copyright.cornell.edu/resources/publicdomain.cfm

Public Domain

You can find all kinds of things in the public domain. I like old films, usually before 1920. But this tune with Clark Gable caught my attention, so I thought I'd share it with you. 1939 Clark Gable and Norma Shearer with a slight change in the lyrics for their purposes.

Puttin' On The Ritz by Irving Berlin has been in the public domain since 1929 and it's been performed in many shows and sung on many albums. Because it is in public domain, no permissions have to be secured. Before public domain, any performer would have to get permission to sing it in public.

Rare Footage of Clark Gable Dancing

A Final Thought

It goes without saying that if you don't read the data accompanying the work, then you won't know for sure if it is in the public domain and free to use.

Do not assume just because you found a picture that you see everyone has been using for some time that it is in the public domain. Do not assume just because a book appears to be out of copyright period, that it is in the public domain.

Each January 1, our public domain doesn't get much larger given the body of works that are available because the U.S. government decides what will be released and what won't. Now that they have the power to copyright public domain works as of 2012, there is no telling which way this will go in the future - whether we will see a treasure trove of public domain or whether will see slim pickings.

The bottom line is that public domain works are the study work of students, of researchers, and authors and we are slowly losing access to the release of public domain works after their copyright expires because the US government insists on changing the copyright rules on a whim and to control what comes into our purview.

Public domain works are the springboard for many new projects and if creative people are denied access to those works, or if public domain works revert back to copyright then adaptations and spin-offs of works will cease (or at the very least, slow down) because the copyright permission will be impossible to get or too expensive to be worth it.

Support public domain information and organizations dedicated to keeping public domain free and plentiful.

© Rachael O'Halloran 6/1/2014

© 2014 Rachael O'Halloran

Comments

Submit a Comment

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #RonElFran, Thanks for reading :)

  • RonElFran profile image

    Ronald E Franklin 3 years ago from Mechanicsburg, PA

    What a great source of in-depth info on PD! It's something writers deal with every day, especially as regards photographs. So, thanks for an enlightening explanation.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #paddycat

    It is all about the money because that is what is behind "licensing" - not only do they want you to ask permission but also to pay the fee.

    Don't stop your creative process because of a road block or two. Learn the ways to get around it so you can keep working at what you do best. As much as the language can be complicated, I can tell you that "licensing" is the keyword that runs through all of the documents I've read. So locate the country of origin, find out who owns the licensing and if your use is personal use, you probably won't have to pay anything but will have to ask permission. If your use is for public use - shared with the public - then you will have to pay their licensing fee. By the way, they have put restrictions of the licensing in 165 of the 168 EU countries. That means even after you pay their fee, they limit you on how many uses you get for that fee. I have no idea how they enforce that or intend to enforce it, but I don't want to tread on toes to find out either. lol

    Good luck to you in your endeavors and thank you for allowing me to put in my two cents,

    Rachael

  • Paddycat profile image

    Annabelle Johnson 3 years ago from Charente, France

    Rachael, thanks so much for taking the time to give me such a lengthy and comprehensive response. I'm not sure I have the intellectual capacity (or patience) to get my head around some of these issues, but I will study your words very carefully and follow up the references you have kindly given.

    My initial reaction is to think, oh my goodness, this is far too complicated. Just play it safe and either buy the music scores or stop singing altogether. But actually, that very much goes against the grain when a lot of this material is old and in principle should be freely available to everyone as a public resource. Clearly, money is being made somewhere along the line.

    I agree wholeheartedly with the comments you make at the end of your hub about public domain works being the springboard for new projects. Legislation already in place is complicated enough without the constant threat of change. I fully understand the need to protect the IP rights of individuals, but it's such a shame when the law has the effect of stifling creativity.

    We're lucky to have knowledgeable people like you who are 'on the ball', watching what's going on and putting the issues out there for discussion. Whilst you are careful to say that you are only a buff in this subject and not an attorney, your hub is a wonderful one-stop shop for information and I will doubtless be referring back to it frequently.

    Kind regards

    Paddycat

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #Paddycat,

    I first want to direct you to consult an intellectual property attorney of your choice OR from any of the free Ask A Lawyer websites because I am not a copyright attorney.

    I am a copyright buff which means I can go to jail just the same as you can for copyright infringement!

    I offer this as a possible answer to your question:

    A work enters the public domain once the proprietary rights over it have expired. It may then be used without charge, as long as the moral rights of the author are respected - with citing the name of the author and the original title of the work.

    It doesn't matter if the work you want to use is public domain in the US or Canada.

    You must look to the country of origin of the work (or author) because that is who has the ultimate jurisdiction over the rights - and licensing.

    The keyword here is "Licensing" because in the EU it is all about that. Even many public domain works are being licensed for use. You ask permission, state your use and pay a fee and they decide if they will grant the licensing for your use.

    The Berne Convention has guidelines that all countries must follow, but that doesn't mean they all do. Asian countries are a case in point.

    You said you live in France.

    Where YOU live has no bearing on your rights to use public domain works of any country. It is the country's rights you must consider.

    However, your country may have something to say about your infringement on the copyrights of others. Some countries prosecute their own citizens for abusing laws in other countries, even though they were already punished by that origin country.

    Determining factors about public domain CAN include the country of the work's origin, the author's country of origin , if the country is part of the Berne Convention (168 are), if the country abides by the new 2011 Directive on Terms of Copyrights, and if the author has been dead the appropriate number of years per his country of origin (or the country who has jurisdiction over the work).

    This article in Wikipedia is up to date as of February 2014 so it is a good reference to use.

    http://en.wikipedia.org/wiki/European_Union_70-yea...

    and here is a direct link to the copyright language which among other things - changed the 50 year law to a 70 year law.

    http://eur-lex.europa.eu/legal-content/EN/TXT/?uri...

    Directive 2001/29/EC requires that a licence be obtained for each of the rights in the exploitation of musical works. In respect of authors, those rights are the exclusive right of reproduction and the exclusive right of communication to the public of musical works, which includes the right of making them available.

    Many musical compositions - especially if there are words in addition to the musical score - are the works of more than one author. The term of protection is calculated from the death of the last surviving author, plus 70 or more years.

    Member States of the Berne Convention were directed to make up their own tables to designate the terms of copyright protection. But they didn't give them a deadline to do it, so from 2011 until now, there are quite a few not in compliance.

    A general rule of thumb for most copyrighted works (literary, paintings, phonographs, etc.) is:

    if the work originates in any European country, it is against their laws to copy, scan, save a copy to your computer, upload a copy to YouTube or other venues, lend it, rent it for public viewing

    I know this is not specifically answering your public domain question, but the EU doesn't specify public domain when they list the rights in their directive here: http://en.wikipedia.org/wiki/Copyright_law_of_the_...

    The following rights are protected by European Union law:

    right of reproduction for authors, performers, producers of phonograms and films and broadcasting organisations

    right of communication to the public for authors, performers, producers of phonograms and films and broadcasting organisations

    right of distribution for authors and for performers, producers of phonograms and films and broadcasting organisations

    right of fixation for performers and broadcasting organisations

    right of rental and/or lending for authors, performers, producers of phonograms and films, with an associated right of equitable remuneration for lending and/or rental for authors and performers

    right of broadcasting for performers, producers of phonograms and broadcasting organisations

    right of communication to the public by satellite for authors, performers, producers of phonograms and broadcasting organisations

    right of computer program reproduction, distribution and rental for authors

    Moral rights are usually considered to be a matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author.

    I know this doesn't thoroughly answer your question, which I am not qualified to do, but I hope your take-away from this is:

    When in Rome, lean. If the origin country's laws say no, then no matter what other countries have in their public domain, the origin country law is what the courts will favor.

    Now go get a second and third opinion, because this answer is not legal or binding in a court of law! LOL

    Thanks for reading and commenting,

    Rachael

  • Paddycat profile image

    Annabelle Johnson 3 years ago from Charente, France

    Thank you, Rachael, for a very informative and well written hub. You are obviously very knowledgeable on this subject. I have a couple of questions because I find it all very complicated. If there is an international agreement, how is it possible for works to be public domain in the US or Canada, say, but not public domain in Europe? I'm always looking for free music scores for a small choir and sometimes get the message 'non-PD EU'. And if I'm sitting here in France posting something on the Internet that is PD in Europe but not in the US, could I be prosecuted? I would be very interested in your comments.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    It's all about "money."

  • bravewarrior profile image

    Shauna L Bowling 3 years ago from Central Florida

    It amazes me what issues the government decides to spend time and money on. It's almost like they're setting us up for failure.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #bravewarrior

    When something is removed from public domain, they will carry a copyright just like anything else that is copyrighted, but it will not be explained on each individual item that was moved to public domain or that it is a new copyright. It will simply have a copyright symbol somewhere to show status.

    What is not going to happen is that a list will be prepared to tell the public what has been removed and that's also wrong. If they are going to tell us every January 1st what is coming into public domain, that is the document most people refer to, to make sure they are in the right with usage.

    If they take something off that list, they should likewise notify or even publish a second edition (updated list or addendum) to the January 1st list. It is a speed trap, guaranteed to get someone into a copyright infringement predicament when they should not be there in the first place due to tricky practices.

    Re: We all know that government employees have a lot of time on their hands to tackle this or any project. However, that doesn't preclude the government from using this situation to hire more employees to undertake this job, probably under a grant or special allowance in a new presidential budget of some sort that will stretch out an astronomical number of years, so that the work pace doesn't have to be above that of a snail.

    Another fine example of our government dollars at work. lol

    Thanks for reading and commenting.

    R

  • bravewarrior profile image

    Shauna L Bowling 3 years ago from Central Florida

    Very interesting, Rachael. I assume any works that get moved from Public Domain to Copyrighted will be noted as such? Sounds like the government has a job opening for someone who's willing to tackle this monumental project.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #breakfastpop,

    It is an important issue, as are all copyright issues. I figure if something like this can land me in court, the least I can do is make sure all my ducks are in a row and that I'm in the right before I walk into a courtroom.

    Nowadays charges of copyright infringement are going way past the cease and desist letter and DMCA notice. People are getting greedy, they want money for damages and are hauling people into court on the most frivolous of evidence.

    Following the guidelines for correct usage with photos and attribution can keep one out of the courtroom and keep one's name out of Google's Chilling Effects website as an infringer every time a DMCA is filed.

    Thanks for reading and your kind words,

    Rachael

  • breakfastpop profile image

    breakfastpop 3 years ago

    Once again you have written a very important and useful piece. A clear understanding of our rights and the rights of others is imperative, especially for writers. Voted up, useful, interesting and awesome.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #vkwok, thank you for reading and commenting. :)

  • vkwok profile image

    Victor W. Kwok 3 years ago from Hawaii

    It was very fascinating reading this article about the public domain. I can see that a lot of work was put into it. Thanks for sharing!

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    The notifications are all messed up on HubPages so I apologize for just now acknowledging your visits. I just got the email you both had commented here. I hope they straighten this out soon, it's pretty bad. lol

    #billybuc,

    I thank you for coming by to read and comment. :)

    #travmaj - I hope you don't find anything wrong. It is a pain to keep fixing photos. I swear I spend more time on matching photos than I do writing content. lol Thank you for reading and commenting. :)

  • travmaj profile image

    travmaj 3 years ago from australia

    My thanks for this. detailing copyright and the complications into perspective is much appreciated. I shall certainly be book marking your hub for future reference. Like MsDora I shall look through my earlier hubs (photos) and make sure I'm not breaking any rules. Great hub. Voting up.

  • billybuc profile image

    Bill Holland 3 years ago from Olympia, WA

    Great information. I love your fervor about this subject. Well done.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #MsDora,

    Public domain is something that many people look forward to each January 1, especially scholars, libraries and researchers and if that pool of works is going to be short-changed, as it has been since 1998 and will now continue to be until someone changes the laws again, then our First Amendment Rights are also being short-changed when it comes to having access to "all works that are no longer under copyright, where the authors have either died, not renewed their copyright, or have given the works over to public domain for the greater good."

    Nowhere in the Constitution does it say "don't forget to pull the rug out from under the American people every few years and re-copyright some works of the great literary giants so people now have to pay for access to the work and ask permission to use it." As it stood before, any use is permitted. If works are re-copyrighted, not all uses will be granted. It will be per the whim of the copyright holder.

    We need another lawsuit to reverse this Supreme Court decision and give the public back its rights to public domain, and to give back public domain so the public can exercise its rights, whether everyone uses them or not.

    Thank you for reading and commenting,

    Rachael

  • MsDora profile image

    Dora Isaac Weithers 3 years ago from The Caribbean

    Very interesting information. There is so much we take for granted about other people's work. Your article encourages us to pay attention to the rights reserved and the privilege which is ours to use them. I intend to edit my first hubs (the photos) which broke some rules before I knew better. Voted Up!