No phrase in the copyright lexicon seems more prone to misunderstanding than this one: the public domain. Credible scholars across many disciplines portray the public domain as composed of material for which the copyright term has expired. This is unduly narrow. At the other end of interpretation, the public domain is seen as any material that can be accessed publicly. Whether that access is paid for, or free, is deemed irrelevant. This interpretation is too vast. As the phrase is neither defined within our Copyright Act, nor by court decree, we need help.
In a landmark publication, The Public Domain, Jessica Litman writes, “The lay understanding of the public domain in the copyright context is that it contains works free from copyright.” To be sure, this will include material for which copyright has expired. But Litman continues, “… The most important part of the public domain is a part we usually speak of only obliquely: the realm comprising aspects of copyrighted works that copyright does not protect.”
Consider this carefully: aspects of copyrighted work that is not protected by copyright. What it means, amongst other things, is that copyrighted work accessed in accordance with Fair Dealing (a legitimate exception to copyright infringement) is considered public domain material. The public domain comes into existence, not by virtue of a work’s age or copyright eligibility, but by the use we make of that work.
This conceptual underpinning of the public domain is not confined to Litman’s interpretation. The Centre for Study of the Public Domain similarly describes the public domain as, “…the realm of material—ideas, images, sounds, discoveries, facts, texts—that is unprotected by intellectual property rights and free for all to use or build upon.” In his work, Copywrights: Intellectual Property and the Literary Imagination, Paul K. Saint Amour writes, “the end of copyright releases the protected aspects of the work into the public domain as some unprotected aspects … have resided there since its publication.” And, with a collection of essays devoted to the subject, Hector MacQueen and Charlotte Waelde also remind us that legal analysis begins from the position of that which, “lies unprotected by intellectual property rights and so is free for use by all engaged in intellectual endeavors…”
However, if this is just a little too esoteric for your tastes, here is a definition provided by the World Intellectual Property Organization (WIPO):
Public domain: … it means from a copyright aspect the realm of all works which can be exploited by everybody without any authorization, mostly because of the expiration of the term of protection (emphasis mine, p.207).
The inclusion of “mostly” indicates that WIPO is aware that there are other measures within the law which remove the requirement of authorization. [My thanks to Howard Knopf for bringing the WIPO glossary to my attention.]
References
Centre for Study of the Public Domain
Intellectual Property – The Many Faces of the Public Domain. 2007. Eds. Charlotte Waelde and Hector MacQueen. Cheltenham: Edward Elgar.
Litman, Jessica. 1990. The Public Domain. Emory Law Journal 39: 965-1023.
Saint-Amour, Paul K. 2003. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca, N.Y.: Cornell University Press.
World Intellectual Property Organization. 1981. WIPO Glossary of Terms of the Law of Copyright and Neighboring Rights. Vol. 827. Geneva: World Intellectual Property Organization.
Fair Duty 