The (Forgotten) Public Domain

by Digital Rights LAC on December 21, 2013


January 1st marks the Public Domain Day, but what we celebrate this day? Are we celebrating not knowing what we have in the public domain? Or, perhaps, the next copyright reform, in where the terms of protection, once again will surely increase?

By David Ramirez Ordoñez*

The Public Domain: Brief Introduction

After a work’s term of protection expired, it enters the public domain. Since then, the work can be used, modified, distributed without requesting authorization from authors or rightsholders. This feeds the cultural heritage of a society and facilitates its development. The problem is that since the first copyright laws until today, the deadline for a work to enter the public domain has increased dramatically. When the Statute of Anne appeared in the 18th century, the protection did not exceed 14 years.

In recent documents leaked by Wikileaks on the Trans-Pacific Partnership Agreement (TPP), there is mentioned the possibility of increasing the term of protection up to 120 years in some cases. Why this disproportionate increase? Is there any thinking on the damage these increases pose to those who use content in the public domain?

Calculating When a Work Enters the Public Domain

Depending on the jurisdiction and the type of work (book, film, sound recording) the terms of protection vary. This is why public domain calculators have been developed, which are tools for knowing when a work is no longer protected. There are available some public domain calculators that can be consulted such as the United States (in the slide or the Public Domain Sherpa) or the European Union. The problem trying to be solved by these calculators is to allow anyone to “calculate” when a work enters the public domain. As shown by some analysis, doing this can be a fairly complex task due to the many variables to be considered. Precisely, the legal complexity that exists today in copyright has made Maria Pallante, the US register, to say, “If you need an army of lawyers to understand the basic precepts of a law, it’s time for a new law.”

Some public domain problems

One of the most important initiatives is to create compilations of works in the public domain. Among these initiatives, there is one to make them available in online public record databases (the record that the authority takes in each country for works protected by copyright). The complexity of copyright makes experts as Severine Dusollier saying that although such coleccions exist, even this is no guarantee that the works can be used. The problem, he says, is that the protection may be exhausted in any given country, but stays in force in others countries. In Latin America, only Brazil has a public domain work database.

In 2011, I was working in the public domain calculator for Colombia. In the process, it was evident that access data from the death authors is one of the main problems. New trends as publishing open data may facilitate this work, but at the time it was difficult to access to that information.

On the other hand, the lack of regulation on permitted uses of orphan works left closed the option of using content whose author is difficult to be identified. On top of that, in some cases the law (at least in the Colombian case) is unclear about when certain types of works fall into the public domain. We highly regulated forms of protecting authors, but neglect readers and people interested in using works in the public domain.

By way of conclusion

By having identified the works that are in the public domain, they can be reused to give them a new life, in a dynamic that seeks to maintain contents available for others to benefit from them. Such is the case of the Public Domain Remix[8], an event where works in the public domain are selected to be modified and distributed without requesting authorization. Such actions could be considered as a “resurrection” of the public domain.

However, our society understands the public domain as a waste, garbage and something we should avoid. We do not see the public domain as valuable, as an opportunity to avoid creating the wheel repeatedly and to learn by taking advantage of what exists. Better public domain management would allow us to save time and effort in identifying authors or rightsholders, authorization submissions, content generation and re-use.

I once read that printing taught us to read and that the Internet is teaching us to write. I add, we write by remixing things, by taking what already exists and modifying, adapting and reformatting it. We need a robust public domain so we have more things where to take for remixing. It is well said in the book Digital Public Domain: We must understand the public domain as the general rule and the contents protected as the exception.

The current situation is that we are not sure what is in the public domain and we keep thinking in restrictions that increase the protection years. In the quest to control, we are suffocating and running out of groundwork to build new things from the created one. Maintaining a weak public domain is to deny the possibility of stand on the shoulders of giants to look further.

January 1st is the Public Domain Day. It is a date to take stock and think about the works whose terms have expired during the previous year and, therefore, enter the public domain. For example, if a Colombian author died in July 1933, his/her work become public domain in 2013 (because in Colombia the protection for natural persons is of 80 years).

In order to celebrate 2013 Public Domain Day, I asked the office responsible, the National Copyright Directorate, the list of works whose protection expired. I write this a year after making such request without any response and hoping that the situation will change sooner rather than later. It is necessary that the State also sees as an obligation protecting the public domain as much as it does with the holders’ rights.

*Professional in information science, teacher and blogger. Contact: