The Ins and Outs of Public Domain: A Quick History

Though many are familiar with the term “public domain,” it remains a little-understood topic. Read on to explore its long and complex history!

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Sherlock Holmes. James Bond. King Kong. These iconic characters are all a part of the public domain, but what does that mean exactly? The concept of the public domain is perplexing to many, myself included! While most people have probably heard the term, many of us would have trouble defining it. And for good reason.

The public domain is a wide-ranging topic with different definitions and laws across various countries, which only adds to the confusing nature of the matter. To simplify things, we’ll be examining the public domain within the context of the United States. That said, let’s dive into this confounding topic to learn more about the public domain’s ever-shifting history.

What is the public domain?

Public domain” is a term used to describe creative works unprotected by intellectual property laws like copyright. Essentially, if a work is in the public domain, this means it belongs to the public, not an individual or entity. Therefore, anyone is free to use a public domain work without permission.

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Works generally enter the public domain when their copyright expires. However, if copyright owners don’t adhere to copyright renewal regulations, their works can also become public domain. Additionally, a copyright owner can choose to donate their work to the public domain through a process known as “dedication.” Effectively, this process waives the copyright holder’s legal rights to the work, allowing anyone to use the work for both commercial and non-commercial purposes without obtaining permission.

What is copyright?

Copyright is a form of intellectual property that protects an original creative work. Under copyright law, copyright holders possess the exclusive right to display, distribute, copy, adapt, and perform a creative work for a specified period. Copyrights can be applied to books, paintings, musical compositions, movies, plays, and many other mediums of creative work. On the other hand, copyright law does not protect blank templates, short phrases, recipes, names, common symbols, and similar works that do not constitute sufficient creativity.

Copyright holders are typically the creators of the original work, although in some cases, an outside party may hold the copyright for a work. For example, suppose an author signs a contract with a publishing house to distribute their book. In this case, the publishing house may be granted a level of ownership over the copyright depending on the terms of the contract.

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Associated with copyright is the concept of “fair use.” Fair use is a limitation set on copyrights that enables restricted use of copyrighted material without the copyright holder’s permission. The intention underlying fair use is that the public benefits from the use of the copyrighted material. Thus, to qualify as fair use, one’s purpose for reproducing copyrighted material must be transformative.

It is difficult to define what constitutes transformative usage of copyrighted material, but most fair use cases fall into the categories of criticism, commentary, or parody. For instance, commentary on a copyrighted work might entail quoting a few lines from a book in a review or summarizing a few paragraphs from a research study in an educational lecture. In whichever scenario, the vast majority of the content must be your original work, with the copyrighted material serving as a supplement to enhance your own content. Furthermore, fair use guidelines generally require that you credit the copyright holder and that you don’t use copyrighted material for commercial purposes.

A Brief History of Public Domain

Our modern conception of the public domain is derived from ancient Roman law, in particular, their propriety rights system, built on the ideas of res nullius, res communes, res publicae, and res universitatis. The Latin word res, meaning “thing,” was typically used in legal contexts to refer to an object of litigation. Res nullius consists of things that are not owned or have yet to be claimed, like unpopulated land. Res communes indicate things that are, by nature, incapable of ownership and, therefore, open to all, including the air, the ocean, and sunlight. Res publicae includes publicly owned infrastructure made for communal use, such as roads, marketplaces, and bridges. Finally, res universitatis encompasses things owned by a public entity, for instance, a local hospital or university owned by a municipality.

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Perhaps the most applicable Roman concept to the modern public domain is usucapio. The literal meaning of usucapio is “taking through use.” Essentially, the term describes the right of a person to acquire ownership of something — for example, a piece of land — by making use of it when its initial owner has seemingly abandoned it. While this concept is often likened to the legal principle of adverse possession or “squatter’s rights,” usucapio is also comparable to modern copyright law in that copyright owners can lose their rights to work if they fail to follow renewal processes or other rules governing copyright possession.

While these concepts certainly helped shape the current concept of ownership, the public domain as we know it today was ultimately born from the Constitution, which established the first federal copyright law in the United States.

A Brief History of Copyright Law

In 1790, when the United States Constitution was finally ratified by every state, the first Copyright Act was put in place. Inspired by Britain’s Statute of Anne, the law extended protections to maps, charts, and books for 14 years with the option to renew for an additional 14 years. In the years to come, the Copyright Act of 1790 would be modified many times. For example, in 1831, the initial protection period was expanded to 28 years. By 1900, the Copyright Act was amended to include visual art, photographs, musical compositions, and dramatic works. During the 1900s, motion pictures and sound recordings were also granted copyright protections.

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The Copyright Act of 1976 further extended the copyright term to the life of the author plus 50 years for works created on or after January 1, 1978, which was when the law officially took effect. In 1998, the term of copyright protection was altered to the life of the author plus 70 years by the Sonny Bono Copyright Term Extension Act, the constitutionality of which was upheld by the Supreme Court in the 2003 Eldred v. Ashcroft case.

Public Domain in the Present

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Current copyright law dictates that works created on or after January 1, 1978, will enter the public domain after the author’s life plus 70 years, as established by the Copyright Act of 1976 and the Sonny Bono Copyright Term Extension Act. In other words, copyright protections extend for 70 years after the death of the work’s author. If a work has multiple authors, the copyright term lasts for 70 years after the death of the last surviving author. Anonymous works and works made for hire are protected for 95 years from the date of publication or 120 years from the date of creation, whichever duration is shorter.

Common Misconceptions About Copyright and the Public Domain

Copyright law can vary from country to country, and even within the United States, copyright law has been subject to numerous changes over the years. Consequently, it’s no wonder a lot of people hold misconceptions about copyright and the public domain. Here is the reality behind some of the most common misunderstandings.

1. Everything on the internet is in the public domain.

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Although publishing a work on the internet may make it more publicly accessible, this doesn’t necessarily mean the work is in the public domain. Much of the original content found on the internet is copyrighted. For instance, blog articles, short stories, and even social media posts can all be copyrighted as “short online literary works.” Likewise, many of the images you see in online news articles are under copyright protections and require permission or accreditation to be used. You should never assume that a work is in the public domain just because you found it on the internet.

2. Anything without a copyright notice is within the public domain.

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Many creators use the copyright symbol (©) to indicate that their work is protected by copyright and deter infringement, but copyright notices have been optional since March 1, 1989. Although there are certainly benefits to using copyright notices, they are no longer required to uphold a work’s copyright protections. Thus, copyright protections apply to a work whether or not it contains a copyright notice. Any original copyrightable work created in the U.S. is automatically protected once it is “fixed in a tangible medium of expression.” Always do your research before using a creative work to ensure it’s not copyrighted.

3. Books that are out of print are in the public domain.

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A work being “out of print” has no bearing on whether it is under copyright protection. Books may go out of print for a variety of reasons — most commonly, low sales — but they are still subject to copyright protections as long as their copyright term has not expired. Commercial availability is not a factor in whether a work is protected by copyright. Therefore, you can’t assume that something is in the public domain just because it’s out of print.

4. Public domain material is never protected by copyright.

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For the most part, this is true. However, there are limited exceptions. Collections of public domain materials may be subject to copyright protection. For example, if someone creates a book that compiles public domain images, the book may be copyrighted even if the individual images are not. Hence, anyone can use the individual images, but copying the entire collection could be a copyright infringement. If you’re planning to use extensive material from a collection of public domain work, always check whether the collection is copyrighted to avoid accidental infringement.

5. Educational and non-commercial uses of copyrighted materials are always fair use.

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While being for educational and non-commercial purposes are two of the main qualifiers that determine whether something falls under fair use, they can’t guarantee you’re in the clear. There are other criteria to consider, such as how much of the copyrighted work is being used and how the value of the copyrighted work is impacted by this usage. Plus, what constitutes fair use is often a subjective decision left to the interpretation of a court, so there are no definitive rules. Remember, copyright holders can take legal action against you if you infringe on their copyright, so you should always exercise caution when using copyrighted materials under fair use.

What is entering the public domain in 2024?

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On January 1, 2024, all works originally published in the U.S. before 1929 entered the public domain. These works include:

You can check out even more works newly added to the public domain here.

The public domain is a tricky topic to understand, but hopefully, this article has helped you grasp the basics! If you’re looking for some free public domain books, check out the selection at Feedbooks or Project Gutenberg. Both sites have a huge online library, including titles from prolific authors like Arthur Conan Doyle, Jane Austen, Oscar Wilde, William Shakespeare, H. G. Wells, and so many more. Happy reading!


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