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Published Works In The Public Domain Explained

Updated on February 6, 2020


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
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
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

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.

© 2014 Rachael O'Halloran


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