What Is the Public Domain?

Creative works that are not protected by copyright are said to be in the “public domain”, a vast commons of material that everyone is free to enjoy, share, and build upon without restriction. While works can be dedicated to the public domain (by the creator forgoing their copyright), most are in the public domain because they are old enough for their copyrights to have expired. However, different countries and jurisdictions have varying laws about how and when copyright expires, meaning there exist, in effect, many public domains, despite the tendency to talk of “the public domain” as a singular entity.

How do I know if a work is in the Public Domain?

For works made prior to 1870 or thereabouts, it is generally safe to assume they are in the public domain the world over. But as we move toward the present, the status will start to vary according to the idiosyncrasies of copyright law in different jurisdictions, meaning a work might be in the public domain in one country but not in another. While copyright law can be frustratingly complex, most countries are covered by one of three main types of copyright term for historical literary and artistic works:

a term which lasts for 70 years after the creator’s death (relevant in UK, Canada, most of the EU, and South America);a term which lasts for 50 years after the creator’s death (relevant to most of Africa and Asia);

a term which lasts for 95 years after the publication of a film or book, including any artworks featured within (relevant solely to the United States).

Within these basic frameworks there are, however, subtleties and exceptions. Determining if an artwork is out of copyright in the US can be particularly tricky, depending as it does on when (if at all) the artwork was first “published” (a term which itself is not clearly defined). To find out more about the ins and outs of US copyright law, we recommend this excellent chart from Cornell University and this tool from the Copyright Advisory Network. For the UK and the EU, you can try this handy set of flowcharts from Law Flow (from 2011, but this shouldn't affect the status of historical works). For info on all countries, see this useful set of pages on Wikiedia Commons.

Digital copies of public domain works

When we encounter a historical public domain work online it is in the form of a digital copy. While the underlying work itself is free from copyright, the digital copy can sometimes be subject to additional claims of copyright (or restrictions applied to its use). Rights and licences applying to historical works found online can therefore be broadly divided into two categories:

The rights status of the underlying work, by which is meant the original work itself (the words of a book, the actual physical painting or drawing, a musical score, etc.).

The rights status of the digital copy, by which is meant the digital reproduction of the original work (usually a scan or photograph).

Whether there should be such a distinction between the originals and their digital copies is hotly debated, and many doubt if it is legally valid to apply copyright to a basic reproduction of an out-of-copyright work. In 1999, in the US, a landmark case (Bridgeman v. Corel) ruled that exact photographic copies of public domain images could not be protected by copyright in the US because the copies lack originality.

You can read more about this topic at: https://publicdomainreview.org/what-is-the-public-domain/ .