Cultivating the Public Domain

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Before 1978, U.S. law made non-copyright status the default for published creative works. “[C]opyright protection was lost permanently if the [copyright] notice was omitted from the first authorized published edition of a work or if it appeared in the wrong form or position. . . . [A] basic failure to comply with the notice provisions forfeited copyright protection and put the work into the public domain in this country.”[1] If the author did not take the trouble to put a copyright notice on her work, it passed into the public domain once published. Public domain status was the default.

After January 1, 1978 (the effective date of the Copyright Act of 1976), omission of a copyright notice could later be corrected, and thus did not result in outright forfeiture of copyright.[2] As of March 1, 1989 (the effective date of the Berne Convention Implementation Act of 1988), notice of copyright is now entirely optional. [3] Today, copyright status, rather than public domain status, is the default for all “original works of authorship fixed in any tangible medium of expression.” [4] As the Copyright Office puts it, “copyright is an incident of creative authorship not dependent on statutory formalities.”[5]

This shift in the copyright default rule has practical impacts that are especially striking in an age of inexpensive self-publishing and information retrieval. First, the author who does not want to exercise the restrictions that copyright law makes available to her now bears the burden of signifying the public domain status of her work. Caselaw suggests that a copyright holder must perform some “overt act” demonstrating her intent to surrender her rights.[6] The amateur Internet author who has no intention of limiting the ways in which other people may use her work unintentionally imposes copyright limitations unless she knows to comply with the overt act requirement. Even if she has no intention of bringing a copyright infringement action, would-be re-users cannot safely assume that she won’t-even if the work bears no copyright notice. Of course, the elimination of the notice requirement means that the author who does want his work copyrighted is relieved of the burden of affixing a proper copyright notice to his work. The point is that the burden has shifted to the author who prefers public domain status, and that many of the authors who can now self-publish their work on the Internet likely fall into the newly-burdened category. [7]

The second practical impact of the shift in the copyright default rule has yet to be realized. When the copyright expires on a work that is created today, it may be extremely difficult to establish that the work has passed into the public domain. In the absence of a copyright notice or registration requirement, there will not necessarily be a publicly-available record of the date of creation of the work (or even of the identity of its author), and therefore no practical way to determine whether copyright has expired. [8] Public domain works that might otherwise be made widely available via the Internet (or whatever method of information retrieval is relevant by the time modern copyrights expire) may never be identified. [9]

One goal of the Creative Commons project is to alert creators who do not intend to copyright their work to the “overt act” requirement and to help them comply with it. Then we hope to help creators label works in a way that makes it clear to potential re-users that the work is in the public domain. And we intend to develop mechanisms for attaching “public domain” labels to digital works in a way that computer applications can recognize and process-enabling easy location and retrieval of digital works in the public domain.

Some copyright holders may be unwilling to free their work to the public domain before their copyright expires, but happy to relinquish some of the rights that copyright affords them. Copyright holders with the resources to negotiate licenses can voluntarily cede some of their rights. And organizations like the Free Software Foundation offer ready-made licenses that authors may use to give the public permission to copy and distribute copyrighted works (primarily software) without seeking the authors’ permission, so long as certain conditions are observed. [10]

Inspired in part by the work of the Free Software Foundation, Creative Commons plans to build a menu of customizable licenses appropriate for use by other types of creators who want to retain some rights while sharing their work with the public on terms more generous than copyright. We hope to draw attention to and complement existing efforts like the Electronic Frontier Foundation’s Open Audio License; [11] and we hope to improve on such efforts by making it easier for potential re-users to identify works that they may safely use without worrying about the intricacies of fair use. Just as a work could be labeled “public domain” in a way that humans and machines could recognize, works could be labeled according to license terms like “This work may be used for any noncommercial purpose,” or “Derivative works may be created based on this work so long as the derivative works are licensed under these terms.” We envision a system of licensing and labeling that would make it possible, for example, for an artist compiling a digital collage easily to use a search engine to locate all online images that are freely available for copying and modification.

[1] U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work, see also, e.g., Canfield v. Ponchatoula Times, 759 F.2d 493, 497 (5th Cir. 1985); Burke v. Nat. Broad. Co., Inc., 598 F.2d 688, 691 (1st Cir. 1979).

[2] Copyright Act of 1976, Pub. L. 94-553, §§405-406, 90 Stat. 2541; see also U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work.

[3] Berne Convention Implementation Act of 1988, Pub. L. 100-568, §7, 102 Stat. 2853 (amending 17 U.S.C. §§401-06); U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work. Although notice is no longer a prerequisite for copyright, it does offer an advantage to the copyright holder in the event of litigation. Specifically, if proper notice appeared on an infringed work, the infringer may not use the defense of innocent infringement to mitigate damages. 17 U.S.C. §401(d).

[4] 17 U.S.C. §102.

[5] U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work. The Copyright Act does impose the requirement that two copies of every work published in the United States be deposited with the Library of Congress.17 U.S.C. §407. But the penalty for failure to deposit is a fine, not loss of copyright protection. Id. §407(a), (d).

[6] See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §13.06 (2001) (citing caselaw); see also, e.g., National Comics Publications, Inc. v. Fawcett Publications, Inc., 191 F.2d 594 (2nd Cir. 1951).

[7] See generally Jessica Litman, Digital Copyright 103-107 (2001) (suggesting that many Internet publishers are not motivated by the possibility of exploiting intellectual property rights).

[8] See generally U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work (cautioning that “[t]he complete absence of any information about a work in the [Copyright] Office records does not mean that the work is unprotected”).

[9] The Copyright Office currently maintains no list of public domain works. See U.S. Copyright Office, Questions Frequently Asked in the Copyright Office Public Information Section, at #11.

[10] See GNU General Public License.

[11] See EFF Open Audio License, see also, e.g., Design Science License, Open Publication License, Public Library of Science Open Access License, GNU Free Documentation License, Open Music License.