|Sui generis rights|
Higher category: Property and Property law
The public domain consists of all the creative works to which no exclusive intellectual property rights apply. Those rights may have expired,been forfeited, expressly waived, or may be inapplicable.
A creative work is a manifestation of creative effort including fine artwork, dance, writing (literature), filmmaking, and musical composition.
In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right. The term is restricted for use for official state or sovereign powers. Exclusive rights are a form of monopoly.
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. Intellectual property encompasses two types of rights: industrial property rights and copyright. It was not until the 19th century that the term "intellectual property" began to be used, and not until the late 20th century that it became commonplace in the majority of the world.
The works of William Shakespeare and Beethoven, and most early silent films, are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired.Some works are not covered by copyright, and are therefore in the public domain—among them the formulae of Newtonian physics, cooking recipes, and all computer software created prior to 1974. Other works are actively dedicated by their authors to the public domain (see waiver); some examples include reference implementations of cryptographic algorithms, the image-processing software ImageJ, (created by the National Institutes of Health), and the CIA's World Factbook. The term public domain is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".
As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country. The term public domain may also be interchangeably used with other imprecise or undefined terms such as the "public sphere" or "commons", including concepts such as the "commons of the mind", the "intellectual commons", and the "information commons".
The public sphere is an area in social life where individuals can come together to freely discuss and identify societal problems, and through that discussion influence political action. Such a discussion is called public debate and is defined as the expression of views on matters that are of concern to the public—often, but not always, with opposing or diverging views being expressed by participants in the discussion. Public debate takes place mostly through the mass media, but also at meetings or through social media, academic publications and government policy documents. The term was originally coined by German philosopher Jürgen Habermas who defined "the public sphere as a virtual or imaginary community which does not necessarily exist in any identifiable space". Communication scholar Gerard A. Hauser defines it as "a discursive space in which individuals and groups associate to discuss matters of mutual interest and, where possible, to reach a common judgment about them". The public sphere can be seen as "a theater in modern societies in which political participation is enacted through the medium of talk" and "a realm of social life in which public opinion can be formed".
The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable earth. These resources are held in common, not owned privately. Commons can also be understood as natural resources that groups of people manage for individual and collective benefit. Characteristically, this involves a variety of informal norms and values employed for a governance mechanism. Commons can be also defined as a social practice of governing a resource not by state or market but by a community of users that self-governs the resource through institutions that it creates.
Although the term "domain" did not come into use until the mid-18th century, the concept "can be traced back to the ancient Roman Law, as a preset system included in the property right system."The Romans had a large proprietary rights system where they defined "many things that cannot be privately owned" as res nullius , res communes , res publicae and res universitatis. The term res nullius was defined as things not yet appropriated. The term res communes was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean." The term res publicae referred to things that were shared by all citizens, and the term res universitatis meant things that were owned by the municipalities of Rome. When looking at it from a historical perspective, one could say the construction of the idea of "public domain" sprouted from the concepts of res communes, res publicae, and res universitatis in early Roman law.
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
Res nullius is a Latin term derived from private Roman law whereby res is not yet the object of rights of any specific subject. Such items are considered ownerless property and are free to be acquired by means of occupatio.
Res communis is a Latin term derived from Roman law that preceded today’s concepts of the commons and common heritage of mankind. It has relevance in international law and common law.
When the first early copyright law was first established in Britain with the Statute of Anne in 1710, public domain did not appear. However, similar concepts were developed by British and French jurists in the 18th century. Instead of "public domain", they used terms such as publici juris or propriété publique to describe works that were not covered by copyright law.
The Statute of Anne, also known as the Copyright Act 1710, is an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the government and courts, rather than by private parties.
Publici juris is a legal Latin term, approximately translating to English as "of public right". An example is water in the sea.
The phrase "fall in the public domain" can be traced to mid-19th century France to describe the end of copyright term. The French poet Alfred de Vigny equated the expiration of copyright with a work falling "into the sink hole of public domain"and if the public domain receives any attention from intellectual property lawyers it is still treated as little more than that which is left when intellectual property rights, such as copyright, patents, and trademarks, expire or are abandoned. In this historical context Paul Torremans describes copyright as a, "little coral reef of private right jutting up from the ocean of the public domain." Copyright law differs by country, and the American legal scholar Pamela Samuelson has described the public domain as being "different sizes at different times in different countries".
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.
Alfred Victor, Comte de Vigny was a French poet and early leader of French Romanticism. He also produced novels, plays, and translations of Shakespeare.
Pamela Samuelson is the Richard M. Sherman '74 Distinguished Professor of Law and Information Management at the University of California, Berkeley with a joint appointment in the UC Berkeley School of Information and Boalt Hall, the School of Law. She was appointed Visiting Professor of Law at Harvard Law School for the Fall 2007 term. She is also Co-Director of the Berkeley Center for Law and Technology and a co-founder of Authors Alliance.
Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law.According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property. However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership. A conceptual definition comes from Lange, who focused on what the public domain should be: "it should be a place of sanctuary for individual creative expression, a sanctuary conferring affirmative protection against the forces of private appropriation that threatened such expression". Patterson and Lindberg described the public domain not as a "territory", but rather as a concept: "[T]here are certain materials – the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers – not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival." The term public domain may also be interchangeably used with other imprecise or undefined terms such as the "public sphere" or "commons", including concepts such as the "commons of the mind", the "intellectual commons", and the "information commons".
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A public-domain book is a book with no copyright, a book that was created without a license, or a book where its copyrights expiredor have been forfeited.
In most countries the term of protection of copyright lasts until January first, 70 years after the death of the latest living author. The longest copyright term is in Mexico, which has life plus 100 years for all deaths since July 1928.
A notable exception is the United States, where every book and tale published prior to 1924 is in the public domain; American copyrights last for 95 years for books written between 1924 and 1978.
For example: the works of Jane Austen, Lewis Carroll, Machado de Assis, Olavo Bilac and Edgar Allan Poe are in the public domain worldwide as they all died over 100 years ago.
Project Gutenberg makes tens of thousands of public domain books available online as ebooks.
People have been creating music for millennia. The first musical notation system, the Music of Mesopotamia system, was created 4000 years ago. Guido of Arezzo introduced Latin musical notation in the 10th century.[ citation needed ] This laid the foundation for the preservation of global music in the public domain, a distinction formalized alongside copyright systems in the 17th Century. Musicians copyrighted their publications of musical notation as literary writings, but performing copyrighted pieces and creating derivative works were not restricted by early copyright laws. Copying was widespread, in compliance with the law, but expansions of those laws intended to benefit literary works and responding to commercial music recording technology's reproducibility have led to stricter rules. Relatively recently, a normative view that copying in music is not desirable and lazy has become popular among professional musicians.
U.S. copyright laws distinguish between musical compositions and sound recordings, the former of which refers to melody, notation and/or lyrics created by a composer and/or lyricist, including sheet music, and the latter referring to a recording performed by an artist, including a CD, LP, or digital sound file.Musical compositions fall under the same general rules as other works, and anything published prior to 1922 is considered public domain. Sound recordings, on the other hand, are subject to different rules and are not eligible for public domain status until 2021–2067, depending on the date and location of publishing.
The Musopen project records music in the public domain for the purposes of making the music available to the general public in a high-quality audio format. Online musical archives preserve collections of classical music recorded by Musopen and offer them for download/distribution as a public service.
A public-domain film is a film that was released to public domain by its author or because its copyright has expired. In 2016 there are more than 2,000 films on public domain in every genre, from musicals to romance, horror to animated movies and noir to western movies.[ citation needed ]
Pamela Samuelson has identified eight "values" that can arise from information and works in the public domain.
Possible values include:
Derivative works include translations, musical arrangements, and dramatizations of a work, as well as other forms of transformation or adaptation.Copyrighted works may not be used for derivative works without permission from the copyright owner, while public domain works can be freely used for derivative works without permission. Artworks that are public domain may also be reproduced photographically or artistically or used as the basis of new, interpretive works. Works derived from public domain works can be copyrighted.
Once works enter into the public domain, derivative works such as adaptations in book and film may increase noticeably, as happened with Frances Hodgson Burnett's novel The Secret Garden , which became public domain in the U.S. in 1987 and most of the rest of the world in 1995.By 1999, the plays of Shakespeare, all public domain, had been used in more than 420 feature-length films. In addition to straightforward adaptation, they have been used as the launching point for transformative retellings such as Tom Stoppard's Rosencrantz and Guildenstern Are Dead and Troma Entertainment's Romeo and Juliet . Marcel Duchamp's L.H.O.O.Q. is a derivative of Leonardo da Vinci's Mona Lisa, one of thousands of derivative works based on the public domain painting.
Some works may never fully lapse into the public domain. A perpetual crown copyright is held for the Authorized King James Version of the Bible in the UK.
While the copyright has expired for the Peter Pan works by J. M. Barrie (the play Peter Pan, or the Boy Who Wouldn't Grow Up and the novel Peter and Wendy) in the United Kingdom, it was granted a special exception under the Copyright, Designs, and Patents Act 1988 (Schedule 6)that requires royalties to be paid for commercial performances, publications and broadcasts of the story of Peter Pan within the UK, as long as Great Ormond Street Hospital (to whom Barrie gave the copyright) continues to exist.
In a paying public domain regime, works that have entered the public domain after their copyright has expired, or traditional knowledge and traditional cultural expressions that have never been subject to copyright, are still subject to royalties payable to the state or to an authors' association. The user does not have to seek permission to copy, present or perform the work, but does have to pay the fee. Typically the royalties are directed to support of living artists.
The Creative Commons proposed in 2010 the Public Domain Mark (PDM) as symbol to indicate that a work is free of known copyright restrictions and therefore in the public domain.The public domain mark is analogous to the copyright symbol, which acts as copyright notice. The Europeana databases use it, and for instance on the Wikimedia Commons in February 2016 2.9 million works (~10% of all works) are listed as PDM.
The underlying idea that is expressed or manifested in the creation of a work generally cannot be the subject of copyright law (see idea–expression divide). Mathematical formulae will therefore generally form part of the public domain, to the extent that their expression in the form of software is not covered by copyright.
Works created before the existence of copyright and patent laws also form part of the public domain. For example, the Bible and the inventions of Archimedes are in the public domain. However, translations or new formulations of these works may be copyrighted in themselves.
Determination of whether a copyright has expired depends on an examination of the copyright in its source country.
In the United States, determining whether a work has entered the public domain or is still under copyright can be quite complex, primarily because copyright terms have been extended multiple times and in different ways—shifting over the course of the 20th century from a fixed-term based on first publication, with a possible renewal term, to a term extending to 50, then 70, years after the death of the author. The claim that "pre-1924 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years.
In most other countries that are signatories to the Berne Convention, copyright term is based on the life of the author, and extends to 50 or 70 years beyond the death of the author. (See List of countries' copyright lengths.)
Legal traditions differ on whether a work in the public domain can have its copyright restored. In the European Union, the Copyright Duration Directive was applied retroactively, restoring and extending the terms of copyright on material previously in the public domain. Term extensions by the U.S. and Australia generally have not removed works from the public domain, but rather delayed the addition of works to it. However, the United States moved away from that tradition with the Uruguay Round Agreements Act, which removed from the public domain many foreign-sourced works that had previously not been in copyright in the US for failure to comply with US-based formalities requirements. Consequently, in the US, foreign-sourced works and US-sourced works are now treated differently, with foreign-sourced works remaining under copyright regardless of compliance with formalities, while domestically-sourced works may be in the public domain if they failed to comply with then-existing formalities requirements—a situation described as odd by some scholars, and unfair by some US-based rightsholders.
Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries.They may also be in the public domain in other countries as well. The legal scholar Melville Nimmer has written that "it is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work".
Before 1988 in the US, works could be easily given into the public domain by just releasing it without an explicit Copyright notice. With the Berne Convention Implementation Act of 1988 (and the earlier Copyright Act of 1976, which went into effect in 1978), all works were by default copyright protected and needed to be actively given into public domain by a waiver statement/anti-copyright can call notice. [ citation needed ] This may even "effectively prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights".Not all legal systems have processes for reliably donating works to the public domain, e.g. civil law of continental Europe.
An alternative is for copyright holders to issue a licence which irrevocably grants as many rights as possible to the general public. Real public domain makes licenses unnecessary, as no owner/author is required to grant permission ("Permission culture"). There are multiple licenses which aim to release works into the public domain. In 2000 the WTFPL was released as a public domain like software license.In 2009 the Creative commons released the CC0, which was created for compatibility with law domains which have no concept of dedicating into public domain. This is achieved by a public domain waiver statement and a fall-back all-permissive license, in case the waiver is not possible. The Unlicense, published around 2010, has a focus on an Anti-copyright message. The Unlicense offers a public domain waiver text with a fall-back public domain-like license inspired by permissive licenses but without attribution.
In October 2014 the Open Knowledge Foundation recommends the Creative Commons CC0 license to dedicate content to the public domain,and the Open Data Commons Public Domain Dedication and License (PDDL) for data.
In most countries, the term of rights for patents is 20 years, after which the invention becomes part of the public domain. In the United States, the contents of patents are considered valid and enforceable for 20 years from the date of filing within the United States or 20 years from the earliest date of filing if under 35 USC 120, 121, or 365(c).However, the text and any illustration within a patent, provided the illustrations are essentially line drawings and do not in any substantive way reflect the "personality" of the person drawing them, are not subject to copyright protection. This is separate from the patent rights just mentioned.
A trademark registration may remain in force indefinitely, or expire without specific regard to its age. For a trademark registration to remain valid, the owner must continue to use it. In some circumstances, such as disuse, failure to assert trademark rights, or common usage by the public without regard for its intended use, it could become generic, and therefore part of the public domain.
Because trademarks are registered with governments, some countries or trademark registries may recognize a mark, while others may have determined that it is generic and not allowable as a trademark in that registry. For example, the drug "acetylsalicylic acid" (2-acetoxybenzoic acid) is better known as aspirin in the United States—a generic term. In Canada, however, "Aspirin", with an uppercase A, is still a trademark of the German company Bayer, while aspirin, with a lowercase "a", is not. Bayer lost the trademark in the United States, the UK and France after World War I, as part of the Treaty of Versailles. So many copycat products entered the marketplace during the war that it was deemed generic just three years later.
Bayer also lost the trademark in the same jurisdictions for "Heroin" which it trademarked a year before it trademarked Aspirin.[ citation needed ]
Although Hormel resigned itself to genericide,it has fought attempts by other companies to register "spam" as a trademark in relation to computer products.
Public Domain Day is an observance of when copyrights expire and works enter into the public domain.This legal transition of copyright works into the public domain usually happens every year on 1 January based on the individual copyright laws of each country.
The observance of a "Public Domain Day" was initially informal; the earliest known mention was in 2004 by Wallace McLean (a Canadian public domain activist), As of 1 January 2010 [update] a Public Domain Day website lists the authors whose works are entering the public domain. There are activities in countries around the world by various organizations all under the banner Public Domain Day.with support for the idea echoed by Lawrence Lessig.
A license or licence is an official permission or permit to do, use, or own something.
Opposition to copyright or anti-copyright is opposition to the current state of copyright law, or perhaps copyright as a concept. Opposition groups often criticize philosophical, economical, or social rationales of such laws and the laws' implementations, the benefits of which they claim do not justify the policy's costs to society. Adherents advocate for changing the current system, though different groups have different ideas of what that change should be. Some call for remission of the policies to a previous state—copyright once covered few categories of thing and had shorter term limits—or they may seek to expand concepts like Fair Use that allow permissionless copying. Others seek the abolition of copyright itself.
The history of copyright law starts with early privileges and monopolies granted to printers of books. The British Statute of Anne 1710, full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned", was the first copyright statute. Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative works were made subject to copyright and copyright now covers a wide range of works, including maps, performances, paintings, photographs, sound recordings, motion pictures and computer programs.
An anti-copyright notice is a specific statement that is added to a work in order to encourage wide distribution. Such notices are legally required to host such specific media; under the Berne Convention in international copyright law, works are protected even if no copyright statement is attached to them. However, "anti-copyright" statements typically do not take the form of either sophisticated public copyright licenses or a simple dedication to the public domain; instead, they usually just encourage wide distribution. Depending on jurisdiction, it is possible to denounce all claims to copyright in a work including moral rights in a written disclaimer.
Common law copyright is the legal doctrine which grants copyright protection based on common law of various jurisdictions, rather than through protection of statutory law.
Perpetual copyright can refer to a copyright without a finite term, or to a copyright whose finite term is perpetually extended. Perpetual copyright in the former sense is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based either on the date of creation/publication, or on the date of the creator's death. Exceptions have sometimes been made, however, for unpublished works. Usually, special legislation is required, granting a perpetual copyright to a specific work.
Public-domain software is software that has been placed in the public domain: in other words, there is absolutely no ownership such as copyright, trademark, or patent. Software in the public domain can be modified, distributed, or sold even without any attribution by anyone; this is unlike the common case of software under exclusive copyright, where software licenses grant limited usage rights.
Public-domain-equivalent license are licenses that grant public-domain-like rights or/and act as waivers. They are used to make copyrighted works usable by anyone without conditions, while avoiding the complexities of attribution or license compatibility that occur with other licenses.
The following outline is provided as an overview of and topical guide to intellectual property:
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.
The philosophy of copyright considers philosophical issues linked to copyright policy, and other jurisprudential problems that arise in legal systems' interpretation and application of copyright law.
Under the law of United Kingdom, a copyright is an intangible property right subsisting in certain qualifying subject-matter. Copyright law is governed by the Copyright, Designs and Patents Act 1988, as amended from time to time. As a result of increasing legal integration and harmonisation throughout the European Union a complete picture of the law can only be acquired through recourse to EU jurisprudence, although this is likely to change if the UK leaves the European Union. Controversial new copyright rules which would require commercial online content sharing services such as YouTube to agree licences with and pay a fair fee to the rights holders of material on their sites for online material will be discussed by the European Parliament in September 2018 after MEPs voted in July 2018 to alter the legislative process. On 12 September 2018 new copyright rules were agreed by the European Parliament to help secure the rights of writers and musicians.
Limitations and exceptions to copyright are provisions, in local copyright law or Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.
Iran is a member of the WIPO since 2001 and has acceded to several WIPO intellectual property treaties. Iran joined the Convention for the Protection of Industrial Property in 1959. In December 2003 Iran became a party to the Madrid Agreement and the Madrid Protocol for the International Registration of Marks. In 2005 Iran joined the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, which ensures the protection of geographical names associated with products. As at February 2008 Iran had yet to accede to The Hague Agreement for the Protection of Industrial Designs.
A free license or open license is a license agreement which contains provisions that allow other individuals to reuse another creator's work, giving them four major freedoms. Without a special license, these uses are normally prohibited by copyright law or commercial license. Most free licenses are worldwide, royalty-free, non-exclusive, and perpetual. Free licenses are often the basis of crowdsourcing and crowdfunding projects.
The Unlicense is a public domain equivalent license with a focus on an anti-copyright message. It was first published on January 1, 2010. The Unlicense offers a public domain waiver text with a fall-back public-domain-like license, inspired by permissive licenses but without an attribution clause. In 2015, GitHub reported that approximately 102,000 of their 5.1 million licensed projects use the Unlicense.
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