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Understanding Exactly What The “Public Domain” Is

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What exactly is the “public domain”?

It is becoming ever so apparent to me – especially in the social media age – how many people don’t understand the copyright principle “public domain.” Copyright law can be confusing in large part because the statute has changed so many times, the result of which is a change – multiple times – in the statutory term of protection for a copyrightable work.

In order to fully grasp what the term “public domain” means, you need to understand a few basic principles about copyright law. So, here are some basics.

What Copyright Is

Copyright is a form of intellectual property that protects original works of authorship that are fixed in a tangible form of expression.

Works that can be protected by copyright may include literary works (which is any type of written creative work and can include computer programming code), musical works, dramatic works, choreography, artwork, sculptures, movies and other audiovisual works, architecture, and sound recordings.

The importance of copyright derives from the exclusive rights that the author of a copyrighted work enjoys. With limited exceptions, those exclusive rights include: reproduction, distribution, public performance, public display, and the creation of other works that are based on the copyrighted work.

The beauty of copyright law is that it is automatic; the exclusive rights attach the moment that a creative, original work of expression is captured in some tangible form (e.g. on paper, on the computer, on canvas, on videotape, etc…).

What It Is Not

Copyright does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. These things may be protectable under patent law. Names, titles and short phrases are not protected by copyright either, but they may be protected under trademark law.

It should also be noted that even the most brilliant, creative speeches will not be protected by copyright unless the speech is written down or recorded in some manner (because, as noted above, a copyrighted work must be fixed in some tangible form).

Purely factual information is not protected by copyright law either, because it lacks the necessary creativity to warrant copyright protection. For example, phone numbers in a phone book are considered purely factual or informational.

However, the assembly and arrangement of factual information can be protectable if there is a sufficient level of creativity involved in the arrangement as a whole.

This principle is the basis for copyright protection in many types of works such as non-fiction books, documentaries, and newscasts, because of the creativity involved in expressing the underlying factual information.

The Public Domain

“Public domain” is the term used to generally describe all of the types of works and information that are not protected by copyright.

There is a large mis-perception about when a work falls within the public domain. Many people mistakenly believe that content or designs that they find on the Internet must be in the public domain if there is no readily apparent ownership information or restrictions on use.

This is not true.

The law does not require the owner of a copyrighted work to do any more than fix the work in tangible form (e.g., on the web, on paper, in an audio recording, etc…).

Also, the owner is not required to use a copyright notice (e.g., © 2011 Dunner Law PLLC) in order to secure protection.

Works which do fall within the public domain are not protected by copyright (e.g., purely factual works). In addition, copyrighted works that have expired under the law (e.g., the statutory term of protection has ended) are considered to be in the public domain.

So, for example, all works that were published prior to 1923 are currently in the public domain. This means that the works of Dickens, Shakespeare, Mozart, Beethoven, and countless others are free to everyone to use.

And, works created by the federal government fall within the public domain, as do works in which the copyright owner purposely relinquishes her exclusive rights so that the work can be freely available to all without any restriction (e.g., open source works).

Conclusion

The next time you grab some content from the web without the owner’s permission, think twice – you may find yourself on the receiving end of a “cease and desist” letter.

It is always safer to seek permission if the content or design you wish to use from the Internet is not clearly labeled as free or openly available for public use.

Likewise, you should be aware that your own postings on the Internet are protectable and others should not use your creativity without your permission.

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Image: Mubina H via Flickr, Creative Commons

Lisa Dunner is managing partner of Dunner Law PLLC in Washington, D.C. She has extensive experience in counseling, protection and enforcement of intellectual property and unfair competition rights. Lisa’s expertise includes, among other things, Internet-related issues, trademark and copyright infringement, source code, keyword ads, domain disputes, framing, linking and social media issues. She regularly conducts intellectual property audits for her clients; manages and enforces international trademark and copyright portfolios; and represents numerous clients in cases before the Trademark Trial and Appeal Board and in U.S. state and federal courts. Lisa also negotiates IP and technology-related agreements. You can find Dunner Law on Facebook or Twitter.

DISCLAIMER: The information posted in this blog is provided for informational purposes. Legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. The information presented here is not to be construed as legal advice. Women Grow Business recommends that you consult an attorney if you want professional assurance that the information posted, and your interpretation of it, is appropriate to your particular business.


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