Episode 73
E73: Copyrightability Series, Part 3: What Is Public Domain?
🎙 Just wrapped up the third part of the Copyrightability Series on the Hourly to Exit podcast, and I've got some valuable insights to share with you! 💡 In this episode, we explored the concept of public domain and what it means for copyright protection.
🔍 Key Takeaways:
- Public Domain Definition: Works in the public domain are not protected by intellectual property laws and can be freely used, modified, and distributed without needing permission or paying royalties.
- Ways Works Enter Public Domain: Copyright expiration, explicit dedication by the creator, government works, and failure to meet copyright formalities are some ways works enter the public domain.
- Public Domain ≠ Publicly Available: Just because something is publicly available does not mean it's in the public domain; it could still be subject to copyright protection.
Tune into the full episode for more in-depth discussions and insights on copyrightability, fair use, and avoiding copyright infringement. Remember, understanding copyright laws is crucial for creators and businesses alike.
#Copyrightability #PublicDomain #IntellectualProperty #PodcastInsights
Connect with Erin to learn how to use intellectual property to increase your income and impact. hourlytoexit.com/podcast.
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Music credit: Yes She Can by Tiny Music
A Team Dklutr production
Transcript
Hello, friends.
Speaker:Welcome to this week's edition
Speaker:of the hourly to exit podcast.
Speaker:Also happy holidays,
Speaker:as this is my last
Speaker:solo episode of 2023.
Speaker:And I am excited to close
Speaker:out the year with the third
Speaker:part of my three part series
Speaker:about copyright ability.
Speaker:So copyright ability simply
Speaker:means that an asset is.
Speaker:Capable of protection
Speaker:qualifies for
Speaker:protection under the U.
Speaker:S.
Speaker:Copyright laws.
Speaker:Part one of this series
Speaker:provided an overview
Speaker:of the main requirement
Speaker:for copyrightability,
Speaker:and that is that the
Speaker:asset must be original.
Speaker:Original simply means not
Speaker:copied from another source.
Speaker:That it was Independently
Speaker:created note that
Speaker:original does not mean
Speaker:innovative or novel.
Speaker:It doesn't have to be the
Speaker:most mind blowingly new idea.
Speaker:The asset can be about
Speaker:something that's a kind of
Speaker:tried and true idea, but the
Speaker:expression, the words that you
Speaker:use to describe your take on
Speaker:that idea must be original.
Speaker:In part two, I dove a bit.
Speaker:deeper into the originality
Speaker:requirement by talking
Speaker:about derivative works.
Speaker:And it also included a brief
Speaker:detour into fair use because
Speaker:it's almost impossible to talk
Speaker:about derivative works without
Speaker:talking about fair use.
Speaker:In part two, I answered
Speaker:the question, what makes
Speaker:something truly original
Speaker:versus derivative?
Speaker:So can find part
Speaker:one in episode 71.
Speaker:And part two in episode 72
Speaker:this week, I answer this
Speaker:question that I received
Speaker:at a recent workshop.
Speaker:How do we define the
Speaker:public domain is posting
Speaker:it to social media.
Speaker:Consider the public domain.
Speaker:The answer to this belongs
Speaker:in the copyright ability
Speaker:series, because an asset
Speaker:that is in the public
Speaker:domain is not protected by
Speaker:intellectual property laws.
Speaker:Therefore it's
Speaker:not copyrightable.
Speaker:And so public domain.
Speaker:Concept does apply to not
Speaker:just copyrights, but also to
Speaker:trademarks and the patents.
Speaker:But, of course, we're talking
Speaker:about trademarks here, but
Speaker:I just wanted to make the
Speaker:comment that public domain
Speaker:does apply to other areas
Speaker:of intellectual property
Speaker:laws on the patent side.
Speaker:I'm sure you're familiar with
Speaker:drugs that become generic and
Speaker:that means they passed into
Speaker:public domain and the patent
Speaker:no longer applies to it.
Speaker:When a work is in the
Speaker:public domain, it is freely
Speaker:available for anyone to
Speaker:use, modify, and distribute
Speaker:without needing permission
Speaker:from the original creator,
Speaker:or paying royalties for it.
Speaker:So recall that the exclusive
Speaker:rights held by a copyright
Speaker:owner Are the rights to
Speaker:use it, reproduce it,
Speaker:distribute it, modify it,
Speaker:perform it, display it.
Speaker:And when it's in the public
Speaker:domain, now those rights that
Speaker:are usually exclusively held
Speaker:by the copyright owner can
Speaker:be exercised by the public.
Speaker:How does a work enter
Speaker:the public domain?
Speaker:Well, there are a number
Speaker:of ways it can happen.
Speaker:1st, it may be just
Speaker:the expiration of the
Speaker:protection period in the U.
Speaker:S.
Speaker:copyright protection expires
Speaker:after a certain period.
Speaker:And that period depends
Speaker:upon who created it.
Speaker:I'll talk a little bit
Speaker:about it, but not all
Speaker:the intricacies of it.
Speaker:So, once the copyright.
Speaker:Expires the work enters
Speaker:the public domain.
Speaker:So here in the U.
Speaker:S.
Speaker:January 1st of every year
Speaker:is public domain day.
Speaker:And on the January
Speaker:1st, a new crop works
Speaker:will enter the public
Speaker:domain January 1 of 2023
Speaker:copyrighted works from 1997.
Speaker:entered the public domain.
Speaker:January 1, 2024, copyrighted
Speaker:works from 19, 29 will enter
Speaker:the public domain and so on.
Speaker:Of course, the ones that
Speaker:were already in the public
Speaker:domain remain in the public
Speaker:domain, but a new class of
Speaker:works enter the public domain
Speaker:every year as the passage
Speaker:of time occurs and the
Speaker:protection period expires.
Speaker:So, for instance, among the
Speaker:works that enter the public
Speaker:domain in 2023 are works by
Speaker:Ernest Hemingway, Virginia
Speaker:Wolf, and Agatha Christie,
Speaker:which is pretty interesting.
Speaker:I think if you're interested,
Speaker:you can Google that and
Speaker:see the number, what
Speaker:works are coming into the
Speaker:public domain every year.
Speaker:So that means that, you
Speaker:know, you can write a.
Speaker:sequel to 1 of those works,
Speaker:you can use the characters and
Speaker:put them in new circumstances.
Speaker:you can create a play or a
Speaker:movie based on those works
Speaker:without requiring permission
Speaker:from the, originator.
Speaker:there are a number of nuances
Speaker:to works published before
Speaker:1978, because things have
Speaker:changed a lot in the last 100
Speaker:years about the protection
Speaker:period and how that is
Speaker:calculated and what causes it
Speaker:to go in the public domain.
Speaker:But for works published
Speaker:or registered.
Speaker:from 1978 onwards, the
Speaker:copyright term is the
Speaker:life of the author plus
Speaker:70 years, which is pretty
Speaker:long and for works with
Speaker:corporate for, like,
Speaker:something like a software
Speaker:company, create software.
Speaker:It's not based on the human
Speaker:who created it, but based
Speaker:on the corporation that owns
Speaker:it, the term is either 95
Speaker:years from publication or
Speaker:120 years from creation,
Speaker:whichever is shorter for
Speaker:anonymous pseudonymous or
Speaker:works for higher the term
Speaker:is 95 years from the 1st
Speaker:publication or 120 years from
Speaker:the year of creation as well.
Speaker:All right, so the other way,
Speaker:some works are simply not
Speaker:eligible for cover protection.
Speaker:As I have addressed in my
Speaker:other places in the copyright
Speaker:ability, series works that
Speaker:are never eligible for
Speaker:copyright protection, such as
Speaker:facts, ideas and systems are
Speaker:always in the public domain.
Speaker:Works that consist entirely of
Speaker:commonly known information or
Speaker:self evident facts containing
Speaker:no original authorship, such
Speaker:as standard calendars or
Speaker:directory of members, while
Speaker:the facts and names might be
Speaker:copyrightable under certain
Speaker:circumstances, typically.
Speaker:They are not copyrightable,
Speaker:and therefore in the public
Speaker:domain, only the unique
Speaker:expression or presentation
Speaker:of that information
Speaker:would be copyrightable.
Speaker:For instance, the raw data
Speaker:or facts in a research
Speaker:paper can't be copyrighted,
Speaker:but the way they are
Speaker:presented, analyzed
Speaker:or articulated can be.
Speaker:Another group of, public
Speaker:domain works government
Speaker:works any work created by an
Speaker:officer or employee of the U.
Speaker:S.
Speaker:government as part of
Speaker:their official duties
Speaker:is automatically in
Speaker:the public domain.
Speaker:Now that this.
Speaker:Exception does not apply
Speaker:to work created by state
Speaker:government employees.
Speaker:So don't assume something that
Speaker:is created by state government
Speaker:is in the public domain.
Speaker:But if it is created by the U.
Speaker:S.
Speaker:government, or its employees,
Speaker:of course, that would be
Speaker:public domain works failure
Speaker:to meet copyright formalities.
Speaker:Now, this was
Speaker:more of an issue.
Speaker:prior to 1989, the copyright
Speaker:notice with C with the date
Speaker:on it, a date was required
Speaker:for all works published
Speaker:in order for the copyright
Speaker:protection to apply.
Speaker:People ask about that
Speaker:requirement to put the
Speaker:copyright notice on there.
Speaker:That isn't since 1989.
Speaker:It's no longer required,
Speaker:but prior to 1989,
Speaker:It was required.
Speaker:And so if the notice was
Speaker:admitted, or somehow there was
Speaker:a mistake made with respect
Speaker:to that copyright notice,
Speaker:generally, there are some
Speaker:exceptions, but generally,
Speaker:that work lost copyright
Speaker:protection, and therefore
Speaker:passed into the public domain.
Speaker:And then you can have
Speaker:explicit dedication,
Speaker:a creator can choose.
Speaker:To relinquish their
Speaker:copyrights and place their
Speaker:work in the public domain.
Speaker:there are some tools
Speaker:like Creative Commons
Speaker:Zero, that can do that.
Speaker:I will talk briefly about
Speaker:Creative Commons as well.
Speaker:Creative Commons are
Speaker:copyright licenses.
Speaker:Except they're simple,
Speaker:standardized licenses that
Speaker:have preset conditions and you
Speaker:can simply apply those preset
Speaker:conditions to your work.
Speaker:If you want to find
Speaker:out more about them,
Speaker:go to creative commons.
Speaker:org.
Speaker:But basically creative common
Speaker:licenses can be restrictive.
Speaker:From, requirements
Speaker:to give credit to the
Speaker:creator, you can't use it
Speaker:for any commercial use.
Speaker:I mean, you can't sell it and
Speaker:you can't make any derivatives
Speaker:or adaptations of it, but
Speaker:you can use it as is, giving
Speaker:credit, not selling it.
Speaker:Versus a pretty permissive
Speaker:license, which is simply that
Speaker:you just have to give credit
Speaker:and that's all you need to do.
Speaker:And then there are other
Speaker:licenses that fall between
Speaker:the 2 give credit, but you
Speaker:can use commercially, you
Speaker:can make derivatives, but
Speaker:you have to give, you know,
Speaker:all those combinations.
Speaker:Right?
Speaker:A creative comments
Speaker:0, although it's.
Speaker:Sometimes referred
Speaker:to as a license.
Speaker:It's not a license, right?
Speaker:Because it's a dedication
Speaker:to the public domain.
Speaker:if you elect the creative
Speaker:common 0, then you are
Speaker:waiving all copyright and
Speaker:related rights in the work.
Speaker:So.
Speaker:might use this if they want
Speaker:to dedicate their work to
Speaker:the public domain because
Speaker:it's, data or educational
Speaker:content, scientific work,
Speaker:maybe even artwork, but
Speaker:something where they want
Speaker:to facilitate the free
Speaker:distribution and utilization
Speaker:of that resource globally.
Speaker:That is a more, the
Speaker:merrier, the wider spread.
Speaker:And repeated that
Speaker:information is the better
Speaker:it is for, the world.
Speaker:And so people may elect
Speaker:to dedicate their work
Speaker:to the public domain.
Speaker:the main attributions
Speaker:are, there are no
Speaker:copyright restrictions.
Speaker:When you have that creative
Speaker:domains, zero dedication,
Speaker:you can use the work
Speaker:for any purpose without
Speaker:seeking permission, even
Speaker:commercial purposes.
Speaker:You can take something that
Speaker:someone's given away free
Speaker:and slap a price on it.
Speaker:If someone will pay
Speaker:for it and they wait.
Speaker:So the creator waves
Speaker:all rights to work.
Speaker:No attribution is required.
Speaker:that's a different thing
Speaker:than pretending it's your
Speaker:own idea, but it is not a
Speaker:copyright infringement to
Speaker:not provide attribution.
Speaker:there are, other ethical
Speaker:obligations that you still
Speaker:have, to not claim somebody
Speaker:else's, uh, Work as your own
Speaker:and you can use it worldwide
Speaker:and it cannot be revoked
Speaker:when someone dedicates
Speaker:their work to the public
Speaker:domain that is permanent
Speaker:and it cannot be revoked.
Speaker:However, it is provided as
Speaker:is, without any warranty.
Speaker:So, in the event that work.
Speaker:infringes somebody else's
Speaker:copyright, because it's been
Speaker:dedicated to public domain.
Speaker:It could be that, there are
Speaker:problems within that work.
Speaker:so using that, creative
Speaker:commons zero work is
Speaker:not completely without
Speaker:liability or risk.
Speaker:Here's what public
Speaker:domain is not.
Speaker:So to answer the original
Speaker:question, something that
Speaker:is publicly available
Speaker:doesn't mean it's in
Speaker:the public domain.
Speaker:Publicly available and public
Speaker:domain are not synonymous.
Speaker:Publicly available simply
Speaker:means it is not being,
Speaker:held in confidence.
Speaker:It is something that is
Speaker:available to the public.
Speaker:So think of a course.
Speaker:Or a movie or a song publicly
Speaker:available, but copyright
Speaker:protection remains on that
Speaker:work, according to the
Speaker:things we just talked about.
Speaker:So, the question about
Speaker:publishing something
Speaker:on my social media
Speaker:does not put something
Speaker:in the public domain.
Speaker:It is publicly available,
Speaker:but it is still subject to
Speaker:my copyright protections.
Speaker:The other thing that public
Speaker:domain isn't, it isn't.
Speaker:Free now, it might be, but
Speaker:if you go on Amazon right now
Speaker:and search for a tale of 2
Speaker:cities, you'll see copies of
Speaker:the book that are for sale.
Speaker:Right?
Speaker:So, when we talked
Speaker:about some of the books.
Speaker:You know, Virginia Woolf
Speaker:and Ernest Hemingway.
Speaker:I can't remember
Speaker:Agatha Christie books.
Speaker:You will find those books.
Speaker:Now, by the way, their
Speaker:whole catalog of books
Speaker:is not in public domain.
Speaker:The ones that they published
Speaker:before 1927 are, so
Speaker:you will find all those
Speaker:books on Amazon for sale.
Speaker:So you can't.
Speaker:get the Kindle copy that
Speaker:you bought and just copy it
Speaker:and then start selling it.
Speaker:that particular book.
Speaker:Is for sale and subject
Speaker:to whatever the terms of
Speaker:that sale are, conversely,
Speaker:something that is free.
Speaker:Is not necessarily
Speaker:in the public domain.
Speaker:Think about most of the
Speaker:content that you come
Speaker:across daily on your phone.
Speaker:It's free, but the
Speaker:vast majority of it is
Speaker:protected by copyright.
Speaker:So that is super important
Speaker:because too many people
Speaker:think that's something
Speaker:that's Published on the
Speaker:internet is public domain.
Speaker:That is not what that is.
Speaker:And it is not just because
Speaker:you can access it for
Speaker:free does not mean that it
Speaker:is in the public domain.
Speaker:It is still protected
Speaker:by copyright.
Speaker:People ask me about
Speaker:open source software.
Speaker:So free and open software
Speaker:is not in the public domain.
Speaker:It is still protected
Speaker:by copyright law.
Speaker:So similar to those
Speaker:creative common licenses.
Speaker:If you offer something,
Speaker:as open source software,
Speaker:the copyright owner of
Speaker:that software chooses
Speaker:to grant specific rights
Speaker:to the public through a
Speaker:general public license.
Speaker:just because it's
Speaker:free and it's, not
Speaker:in the public domain.
Speaker:So there are still
Speaker:conditions for using it.
Speaker:It is still protected,
Speaker:but subject to this public
Speaker:license that allows you to
Speaker:use it in specific ways.
Speaker:And so whatever those terms
Speaker:of that license are, you
Speaker:still need to comply with it.
Speaker:So if you don't comply with
Speaker:that, the terms of that free
Speaker:open source license, then you
Speaker:are infringing the copyright.
Speaker:It is still protected
Speaker:by copyright law.
Speaker:You still need to comply with
Speaker:the terms of that license.
Speaker:And if you don't,
Speaker:then you are guilty of
Speaker:copyright infringement.
Speaker:Other people will ask,
Speaker:why we do even have a
Speaker:domain, like, why doesn't
Speaker:protection last longer?
Speaker:And, if you follow what
Speaker:has happened over the
Speaker:last 100 years with the.
Speaker:Increase in the length
Speaker:of copyright protection
Speaker:in particular, there are
Speaker:many people who think
Speaker:it lasts way too long.
Speaker:So, now, with the life of the
Speaker:author, plus was it 70 years
Speaker:or 95 years, basically the
Speaker:value to the original owner.
Speaker:Has probably, 0 to 9, right?
Speaker:However, the value to
Speaker:the world, because at
Speaker:the end of the day, there
Speaker:really aren't that many
Speaker:original ideas anymore.
Speaker:Right.
Speaker:And so to be able to
Speaker:build upon Shakespeare
Speaker:to be able to build upon.
Speaker:the odyssey to be able
Speaker:to build upon, other,
Speaker:classic materials.
Speaker:That is the basis of so
Speaker:much of what is, rich
Speaker:in current culture.
Speaker:Public domain is
Speaker:intentionally created.
Speaker:It was intentionally created
Speaker:by Congress to make sure
Speaker:that some works, even
Speaker:creative works, there's a
Speaker:balance for that exclusive
Speaker:period of time that the.
Speaker:Creator has exclusive rights
Speaker:to it, but also to balance
Speaker:it with the greater good
Speaker:that we can have this body
Speaker:of work that we can continue
Speaker:to develop and to grow from.
Speaker:I discovered in researching
Speaker:this when I discovered the
Speaker:Center for the Study of
Speaker:Public Domain, which is
Speaker:awesome, which advocates
Speaker:for a balance between
Speaker:protection and public domain.
Speaker:And they had this to say.
Speaker:Without the public
Speaker:domain, there would be
Speaker:little to protect with
Speaker:intellectual property rights.
Speaker:If copyright lasted
Speaker:long enough to lock
Speaker:up Shakespeare's work,
Speaker:much of the literary
Speaker:canon would vanish.
Speaker:If data, theories, and formula
Speaker:were subject to intellectual
Speaker:property protection,
Speaker:then scientific progress
Speaker:would grind to a halt.
Speaker:So the intellectual
Speaker:property system needs to
Speaker:provide both incentives.
Speaker:Through exclusive rights and
Speaker:the freedoms provided by the
Speaker:public domain, and the key
Speaker:is to find the appropriate
Speaker:balance between them.
Speaker:And I think that is a
Speaker:great way to wrap up the
Speaker:copyright ability series.
Speaker:Again, please check out the
Speaker:last 2 episodes as well as I
Speaker:also had a 3 part series about
Speaker:Copyright infringement or
Speaker:talk about what is copyright
Speaker:infringement, how to avoid
Speaker:being a copyright infringer,
Speaker:which usually happens by
Speaker:accident, not with intent
Speaker:and measures you can take
Speaker:to, reduce the likelihood
Speaker:that you will be a victim
Speaker:of copyright infringement.
Speaker:So please check out
Speaker:those episodes as well.
Speaker:And thank you again.
Speaker:This series has been
Speaker:sponsored by Think Beyond IP.
Speaker:Think Beyond IP helps B2B
Speaker:experts with corporate clients
Speaker:lay the intellectual property
Speaker:foundation required to build
Speaker:new scalable revenue streams.
Speaker:Think Beyond IP has the legal
Speaker:expertise and the corporate
Speaker:experience to provide
Speaker:expert focus to the issues
Speaker:that matter most to you.
Speaker:and to your corporate clients.
Speaker:And if you haven't already
Speaker:head over to thinkbeyondip.
Speaker:com to get your free
Speaker:assessment to answer
Speaker:the question, is your
Speaker:expertise copyrightable?
Speaker:Thanks guys.
Speaker:Have a great holiday.
