Celebrate the Public Domain
The beginning of the new calendar year always gives us a moment to reflect on the importance of the public domain. January 1 is “Public Domain Day.” The public domain in the United States includes texts and materials that are “out of copyright”; that is, they have no copyright protection. The joy of the public domain is that unlike “fair use” or permissions-based or licensed-based use like that detailed on the Creative Commons website, public domain texts can be used in any way we wish: teaching, writing, remixing, reporting, designing, transforming – even for commercial purposes.
A number of international websites remind us of the public domain each year by listing works that are newly out of copyright. For example, publicdomainday.org reminds us work from authors such as Walter Benjamin, John Buchan, Mikhail Bulgakov, F. Scott Fitzgerald, Emma Goldman, Paul Klee, Selma Lagerlof, Leon Trotsky, Vito Volterra, and Nathanael West entered the public domain on January 1, 2011, if you live in Europe (See http://publicdomainday.org/node/37/).
Duke University’s Center for the Study of the Public Domain importantly points out that for those of us in the US, “Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019.” That’s because copyright protection for published works in the US now extends in most cases to the life of the author plus 70 years (For works created in 1978 or later, the term is life plus 70 years unless the work is for hire or anonymous/pseudonymous. In the later case, the term is “95 years from the date of publication or 120 years from the date of creation whichever ends first” [Fishman, p. 336]). There is currently no requirement for a work to contain a notice or to be renewed in order for the work to be fully protected for the full length permitted by law.
As a general rule, texts published before 1923 are now in the US public domain. Works published first between 1923 and 1963 whose copyrights have not been renewed, as the old law required, are also in the US public domain. Unpublished works whose authors have been dead more than 70 years are in the US public domain, and “any work published outside the United States before January 1, 1923 had its U.S. copyright expire if it contained a copyright notice when it was published” (Fishman, 2010, p. 335). While seemingly simple, these rules can be very complex – and an added complexity is the research often required to learn when a work was actually “published,” when the author died, and if relevant, whether it contained a copyright notice. So while legal experts theorize as much as 85% of all work first published in the US between 1922 and 1963 is now in the public domain (Fishman, p. 5), researching and finding any certainty in that with respect to a particular work may be impossible. Much research though can be done on the US Copyright Office’s website.
An excellent resource outlining basics of the public domain is The Public Domain: How to Find & Use Copyright-Free Writing, Music, Art & More by Stephen Fishman (2010). The book is kind of a “how-to” book on the public domain for general audiences, but is a great resource for teachers as well. The book lists an “infinitesimal fraction” (pp. 40-41) of all written works currently in the public domain – works such as those by Jane Austen, Louisa May Alcott, Lewis Carroll, Joseph Conrad, Mary Shelley, Edith Wharton, and many more. Any of the listed works can be used in any way we wish – to create derivative works such as a screen play or other adaptation. As Fishman points out, “getting permission to create a screenplay from a novel by Stephen King, Michael Crichton . . . may cost millions of dollars” (p. 40), but to use works already in the public domain costs nothing.
A number of resources also provide information on music that is in the public domain – this is becoming more important as we increasingly teach remix writing which often involves the use of audio as well as text and visual. Some sources where public domain music can be found are:
Free Sheet Music Directory
Public Domain Information Project
The Lester S. Levy Collection of Sheet Music
While the public domain holds many possibilities for creation and invention, there are of course some important caveats to remember:
1. Public Domain works do not automatically guarantee you access. The owner of the work can limit or restrict how you can use the work – museums for example sometimes prohibit picture taking of paintings that are nonetheless in the public domain. As owner of the work the museum can condition your right to view the work on your agreement not to take pictures.
2. Only the original public domain work is actually freely available for use. Derivations, adaptations, and annotated versions already in existence may be copyrighted as to any new materials.
3. Rules for the public domain are dependent on the country. Different countries have different lengths of protection and other rules regarding when works go into the public domain.
4. Other laws might create liabilities when using public domain materials: laws such as trademark, patent, or right to publicity.
The public domain is an important tool we can use as writing teachers in order to help our students create without worrying about copyright law, and it’s also a place where we ourselves can find useful resources. So, in all of our focus on using under fair use or using licensed work like that provided through Creative Commons, it’s also important to remember, use, and celebrate the public domain!
Respectfully Submitted 21 Jan. 2011,
Martine Courant Rife, JD, PhD
Junior Chair, CCCC IP Caucus
Lansing Community College
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