Eps 73 - Copyrightability Series, Part 3: What Is Public Domain? Transcript

Erin Austin: Hello, friends. Welcome to this week's edition of the hourly to exit podcast. Also happy holidays, as this is my last solo episode of 2023. And I am excited to close out the year with the third part of my three part series about copyright ability. So copyright ability simply means that an asset is.

Capable of protection qualifies for protection under the U. S. Copyright laws. Part one of this series provided an overview of the main requirement for copyrightability, and that is that the asset must be original. Original simply means not copied from another source. That it was Independently created note that original does not mean innovative or novel.

It doesn't have to be the most mind blowingly new idea. The asset can be about something that's a kind of tried and true idea, but the expression, the words that you use to describe your take on that idea must be original. In part two, I dove a bit. deeper into the originality requirement by talking about derivative works.

And it also included a brief detour into fair use because it's almost impossible to talk about derivative works without talking about fair use. In part two, I answered the question, what makes something truly original versus derivative? So can find part one in episode 71. And part two in episode 72 this week, I answer this question that I received at a recent workshop.

How do we define the public domain is posting it to social media. Consider the public domain. The answer to this belongs in the copyright ability series, because an asset that is in the public domain is not protected by intellectual property laws. Therefore it's not copyrightable. And so public domain.

Concept does apply to not just copyrights, but also to trademarks and the patents. But, of course, we're talking about trademarks here, but I just wanted to make the comment that public domain does apply to other areas of intellectual property laws on the patent side. I'm sure you're familiar with drugs that go become generic and that means they passed into public domain and the patent no longer applies to it.

When a work is in the public domain, it is freely available for anyone to use, modify, and distribute without needing permission from the original creator, or paying royalties for it. So recall that the exclusive rights held by a copyright owner Are the rights to use it, reproduce it, distribute it, modify it, perform it, display it.

And when it's in the public domain, now those rights that are usually exclusively held by the copyright owner can be exercised by the public. How does a work enter the public domain? Well, there are a number of ways it can happen. 1st, it may be just the expiration of the protection period in the U. S.

copyright protection expires after a certain period. And that period depends upon who created it. I'll talk a little bit about it, but not all the intricacies of it. So, once the copyright. Expires the work enters the public domain. So here in the U. S. January 1st of every year is public domain day. And on the January 1st, a new crop works will enter the public domain January 1 of 2023 copyrighted works from 1997.

entered the public domain. January 1, 2024, copyrighted works from 19, 29 will enter the public domain and so on. Of course, the ones that were already in the public domain remain in the public domain, but a new class of works enter the public domain every year as the passage of time occurs and the protection period expires.

So, for instance, among the works that enter the public domain in 2023 are works by Ernest Hemingway, Virginia Wolf, and Agatha Christie, which is pretty interesting. I think if you're interested, you can Google that and see the number, what works are coming into the public domain every year.

So that means that, you know, you can write a. sequel to 1 of those works, you can use the characters and put them in new circumstances. you can create a play or a movie based on those works without requiring permission from the, originator. there are a number of nuances to works published before 1978, because things have changed a lot in the last 100 years about how things, the protection period and how that is calculated and what causes it to go in the public domain.

But for works published or registered. After from 1978 onwards, the copyright term is the life of the author plus 70 years, which is pretty long and for works with corporate authorship, for, something like a software company, create software. It's not based on the human who created it, but based on the corporation that owns it, the term is either 95 years from publication or 120 years from creation, whichever is shorter for anonymous pseudonymous or works for higher the term is 95 years from the year 1st publication or 120 years from the year of creation as well.

All right, so the other way, some works are simply not eligible for cover protection. As I have addressed in my other places in the copyright ability, series works that are never eligible for copyright protection, such as facts, ideas and systems are always in the public domain.

Works that consist entirely of commonly known information or self evident facts containing no original authorship, such as standard calendars or directory of members, while the facts and names might be copyrightable under certain circumstances, typically. They are not copyrightable, and therefore in the public domain, only the unique expression or presentation of that information would be copyrightable.

For instance, the raw data or facts in a research paper can't be copyrighted, but the way they are presented, analyzed or articulated can be. Another group of, public domain works government works any work created by an officer or employee of the U. S. government as part of their official duties is automatically in the public domain.

Now that this. Exception does not apply to work created by state government employees. So don't assume something that is created by state government is in the public domain. But if it is created by the U. S. government, or its employees, of course, that would be public domain works failure to meet copyright formalities.

Now, this was more of an issue. Prior to 1989 prior to 1989, the copyright notice with the C with the date on it, a date was required for all works published in order for the copyright protection to apply. People ask about that requirement to put the copyright notice on there. That isn't since 1989.

It's no longer required, but prior to 1989, It was required. And so if the notice was admitted, or somehow there was a mistake made with respect to that copyright notice, generally, there are some exceptions, but generally, that work lost copyright protection, and therefore passed into the public domain. And then you can have explicit dedication, a creator can choose.

To relinquish their copyrights and place their work in the public domain. there are some tools like Creative Commons Zero, that can do that. I will talk briefly about Creative Commons as well. So, Creative Commons are copyright licenses. Except they're simple, standardized licenses that have preset conditions and you can simply apply those preset conditions to your work.

If you want to find out more about them, go to creative commons. org. But basically creative common licenses can be restrictive. From, requirements to give credit to the creator, you know, you can't use it for any commercial use. I mean, you can't sell it and you can't make any derivatives or adaptations of it, but you can use it as is, giving credit, not selling it.

Right. Versus a pretty permissive license, which is simply that you just have to give credit and that's all you need to do. And then there are other licenses that fall between the 2 give credit, but you can use commercially, you can make derivatives, but you have to give, you know, all those combinations.

Right? A creative comments 0, although it's. Sometimes referred to as a license. It's not a license, right? Because it's a dedication to the public domain. if you elect the creative common 0, then you are waiving all copyright and related rights in the work. So. People, creators might use this if they want to dedicate their work to the public domain because it's, you know, data or educational content, scientific work, maybe even artwork, but something where they want to facilitate the free distribution and utilization of that resource globally.

That is a more, the merrier, the wider spread. And repeated that information is the better it is for, the world. And so people may elect to dedicate their work to the public domain. So the main attributions are, there are no copyright restrictions. When you have that creative domains, zero dedication, you can use the work for any purpose without seeking permission, even commercial purposes.

You can take something that someone's given away free and slap a price on it. If someone will pay for it and they wait. So the creator waves all rights to work. No attribution is required. that's a different thing than pretending it's your own idea, but it is not a copyright infringement to not provide attribution.

there are, other ethical obligations that you still have, to not claim somebody else's, uh, Work as your own and you can use it worldwide and it cannot be revoked when someone dedicates their work to the public domain that is permanent and it cannot be revoked. However, it is provided as is, you know, without any warranty.

So, in the event that work. infringes somebody else's copyright, and you use it under, you know, because it's been dedicated to public domain. It could be that, there are problems within that work. so using that, creative commons zero work is not completely without liability or risk.

Here's what public domain is not. So to answer the original question, something that is publicly available doesn't mean it's in the public domain. Publicly available and public domain are not synonymous. Publicly available simply means it is not being, held in confidence. It is something that is available to the public.

So think of a course. Or a movie or a song publicly available, but copyright protection remains on that work, according to the things we just talked about. So, the question about publishing something on my social media does not put something in the public domain. It is publicly available, but it is still subject to my copyright protections.

The other thing that public domain isn't, it isn't. Free now, it might be, but if you go on Amazon right now and search for a tale of 2 cities, you'll see copies of the book that are for sale. Right? So, when we talked about some of the books. You know, Virginia Woolf and Ernest Hemingway. I can't remember Agatha Christie books.

You will find those books. Now, by the way, their whole catalog of books is not in public domain. The ones that they published before 1927 are, so you will find all those books on Amazon for sale. So you can't. get the Kindle copy that you bought and just copy it and then start selling it.

that particular book. Is for sale and subject to whatever the terms of that sale are, conversely, something that is free. Is not necessarily in the public domain. Think about most of the content that you come across daily on your phone. It's free, but the vast majority of it is protected by copyright.

So that is super important because too many people think that's something that's Published on the internet is public domain. That is not what that is. And it is not just because you can access it for free does not mean that it is in the public domain. It is still protected by copyright. People ask me about open source software.

So free and open source software is not in the public domain. It is still protected by copyright law. So similar to those creative common licenses. If you offer something, as open source software, the copyright owner of that software chooses to grant specific rights to the public through a general public license.

And so just because it's free and it's, not in the public domain. So there are still conditions for using it. It is still protected, but subject to this public license that allows you to use it in specific ways. And so whatever those terms of that license are, you still need to comply with it.

So if you don't comply with that, the terms of that free license, that free open source license, then you are infringing the copyright. It is still protected by copyright law. You still need to comply with the terms of that license. And if you don't, then you are guilty of copyright infringement.

Other people will ask, why we do even have a domain, like, why doesn't protection last longer? And, if you follow what has happened over the last 100 years with the. Increase in the length of copyright protection in particular, there are many people who think it lasts way too long. So, now, with the life of the author, plus was it 70 years or 95 years, basically the value to the original owner.

Has probably, you know, 0 to 9, right? However, the value to the world, because at the end of the day, there really aren't that many original ideas anymore. Right. And so to be able to build upon Shakespeare to be able to build upon. the odyssey to be able to build upon, other, classic materials.

That is the basis of so much of what is, rich in current culture. Public domain is intentionally created. It was intentionally created by Congress to make sure that some works, even creative works, there's a balance for that exclusive period of time that the. Creator has exclusive rights to it, but also to balance it with the greater good that we can have this body of work that we can continue to develop and to grow from.

I discovered in researching this when I discovered the Center for the Study of Public Domain, which is awesome, which advocates for a balance between protection and public domain. And they had this to say. Without the public domain, there would be little to protect with intellectual property rights.

If copyright lasted long enough to lock up Shakespeare's work, much of the literary canon would vanish. If data, theories, and formula were subject to intellectual property protection, then scientific progress would grind to a halt. So the intellectual property system needs to be both provide both incentives.

Through exclusive rights and the freedoms provided by the public domain, and the key is to find the appropriate balance between them. And I think that is a great way to wrap up the copyright ability series. Again, please check out the last 2 episodes as well as I also had a 3 part series about Copyright infringement or talk about what is copyright infringement, how to avoid being a copyright infringer, which usually happens by accident, not with intent and measures you can take to, reduce the likelihood that you will be a victim of copyright infringement.

So please check out those episodes as well. And thank you again. This series has been sponsored by Think Beyond IP. Think Beyond IP helps B2B experts with corporate clients lay the intellectual property foundation required to build new scalable revenue streams. Think Beyond IP has the legal expertise and the corporate experience to provide expert focus to the issues that matter most to you.

and to your corporate clients. And if you haven't already head over to thinkbeyondip. com to get your free assessment to answer the question, is your expertise copyrightable? Thanks guys. Have a great holiday.