The Catholic University of America

What is the Public Domain?

Introduction

One way to conceptualize the public domain is to think of it as the vast repository of intellectual work (books, musical compositions, movies, poetry, census bureau data, legislative history) that belongs to the public. Works in the public domain may be utilized in research, writing, creating, and may be freely copied, performed, broadcast and quoted. Similarly, think of copyright as the mechanism by which certain original creative works are removed from the public

domain for a limited period of time, after which the works automatically enter the public domain.

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Note that the foregoing portrays copyright as the exception and public domain as the rule, rather than copyright as the rule and public domain as the exception. Although publishers might want you to believe otherwise, the intention of lawmakers in drafting copyright legislation was to grant only a temporary monopoly, with the understanding that, "The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly."1

Over the years, the length of the temporary monopoly has lengthened considerably, from 14 years in 1790 (and this only applied to maps, charts and books) to the current term which may now be a century or more. The Copyright Term Extension Act of 1998 provides that the term of copyright for works created after January 1, 1978, is now life of the author plus 70 years, and for corporate, anonymous or pseudonymous works, it is 95 years from the year of first publication, or 120 years from the year of creation, whichever is first.2

1From the House of Representatives Judiciary Committee Report accompaning the comprehensive revision of the Copyright Act of 1909, as quoted by the Supreme Court in Sony Corp. v. Universal City Studios Inc., 464 U.S. 417 (1984).

2The Copyright Term Extension Act (Pub. L. No. 105-298) includes an exception that allows libraries, archives and nonprofit educational institutions to treat a copyrighted work in the last 20 years of protection as if it were in the public domain for purposes of preservation, scholarship or research. Conditions that apply to this usage in the last 20 years require a good faith investigation to determine that the work is not subject to normal commercial exploitation, the work or phonorecord cannot be obtained at a reasonable price, and the use of the work stops if the copyright owner provides notice to the contrary.

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