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13
Nov

 
What is the Public Domain?

The term public domain did not appear in early copyright law, which was first established in Britain with the Statute of Anne 1709. Though the concept did exist and 18th Century British and French jurists used terms such as publici juris or propriété publique to describe works that were not covered by copyright law 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 the 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. Copyright law was created by statute and all works created and published before copyright law was first established are in the public domain. 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." Because copyright law is different from country to country Pamela Samuelson has described the public domain as being "different sizes at different times in different countries".

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 consist of works that are no longer in copyright term or were never protected by copyright law. More subtle definitions of the public domain move beyond those works that no longer receive legal protection under intellectual property law and incorporates all aspects of works which are not covered by the intellectual property doctrine, such as insubstantial parts of a copyrighted work or the statutory defined permitted acts and exceptions to copyright. A less legalistic definition of the public domain 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: "There 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 to use no less than matter necessary for biological survival." The term public domain may also be interchangeably used with other imprecise and/or undefined terms such as the "public sphere" or "commons", including concepts such as "commons of the mind", the "intellectual commons" and the "information commons".

 

Posted: 13 Nov Nov.13.2010, 12:35 am by Mike Koenig in Newton, NC
 

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