Public domain

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. 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'. 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. 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 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'. 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: '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'. A public-domain book is a book with no copyright, a book that was created without a license, or a book where its copyrights expired or have been forfeited.