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Guide:

Intellectual
Property

     expiry

This page deals with the public domain - ownership by everyone and no one - into which works pass because the period of protection has ceased or because they have a special status, for example US government publications.

It also points to resources for identifying whether a work is in copyright, for example the WATCH database. Those resources are discussed in more detail here.

     coverage

Works enter the public domain in three ways:

• they become common property when the period of protection expires
• restrictions on copying and distribution have never been made, for example in publications of the US government
• the copyright owner explicitly relinquishes rights.

One Australian perspective is Matthew Rimmer's 2003 article The Dead Poets Society: The Copyright Term and The Public Domain.

     repackaged content

As preceding pages and the Intellectual Property guide have suggested, the copyright regimes in Australia and overseas provide some protection for the 'repackaging' of public domain content.

The extent of that protection and its duration varies considerably from regime to regime. A straight facsimile of a public domain book would generally not gain copyright protection for the publisher or photographer. However, there would be protection for editorial apparatus such as footnotes, an introduction, choice of words and even typographic layout - all of which might be regarded as expressions of creativity. While William Shakespeare, for example, is long dead and his writing is in the public domain, editors and publishers enjoy some protection for their editions of Much Ado About Nothing and other works.

As we have noted in discussing the museum 'reprographic right' US courts have been reluctant to provide extensive copyright protection for photographic reproductions of public domain images.

The New York court decision in the Bridgeman v Corel case, for example, involved claims that Canadian software company Corel had breached the copyright of The Bridgeman Art Library (a UK British company that licenses transparencies of public domain artwork owned by museums) by including those 'Bridgeman' images on a Corel CD.

The court disagreed, endorsing Corel's claim that Bridgeman had no copyright to the individual images because those images were in the public domain and Bridgeman's transparencies lacked the original authorship required by US copyright law. That decision has, however, been criticised in the UK, particularly by museums, and caution is desirable.

One rule of thumb is that work is in the public domain in the US if it was -

• created by the federal government, at any time
• published in the US between 1964-1977 without a copyright notice
• published in the US between 1923-1963 with a copyright notice, if the copyright was not renewed when the initial term expired
• published in the US between 1923-1963 without a copyright notice
• published in the US before 1923.

'Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status' by Peter Hirtle in 14(7) D-Lib (2008) warns about simplistic application of that rule.

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