What Is in the Public Domain?

Copyright does not govern all creative works. Those works not governed by copyright are considered in the public domain. Works that are in the public domain may be utilized in research, writing, creating, and may be freely copied, performed, broadcast and recorded.

Because the public domain is a dynamic arena where the number of works it holds is in constant flux, there is no definitive list of what is in the public domain. Moreover, the subjective element determining copyright ownership, coupled with the variety of laws governing the boundaries of the public domain, further complicate a definitive list of such works.

However, the public domain may be broadly described as:

• Works created before the enactment of copyright statutes, such as the works of Shakespeare (i.e., works created and published a century or more ago);

• Works that were once copyrighted, but for which the copyright has now expired, such as Mark Twain’s Huckleberry Finn; 

• Works that are specifically put into the public domain by its author or the owner of the copyright, such as freeware (i.e., works where the creator has expressly disclaimed a copyright interest);

• Works that consist of facts rather than creative expression, such as a telephone book, or works that lack of originality, cannot be copyrighted;

• Works published prior to January 1, 1978, that did not meet then existing technical formalities for copyright (i.e., J.R.R. Tolkien’s The Lord of the Rings Trilogy, which fell into the public domain due to failure to meet statutory prerequisites);

• Works that were once ineligible for U.S. copyright under the 1790 copyright law that put all published works by foreign nationals into the public domain (this law was changed in 1891);

• Portions of copyrighted works that copyright does not protect, such as the "common stock of literary composition – ‘clichés’ – to which no one can claim ownership";

• Almost all works of the United States government, both published or unpublished, including all case law, all census bureau data, and all legislative history;

• State statutes and state supreme court opinions; and

• Ideas, processes, methods and systems described in copyrighted works.

See Copyright Term and Public Domain in the United States by Peter Hirtle; as well as the Copyright Slider for an interactive vresion of the public domain/copyright status chart.

Step 2 – Safe Harbor

The Fair Use Doctrine

The "fair use" doctrine is a limitation on the exclusive rights granted to a copyright owner by permitting the use and production of a copyrighted work without the copyright owner’s permission. As such, the doctrine of fair use assumes a work is not in the public domain. The doctrine of fair use employs a balancing test to weigh competing policy interests. The fair use exception contained in copyright law "serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity."¹

Safe Harbor Guidelines for Fair Use

"There are no legal rules permitting the use of specific number of word counts, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances."² That being said, the following "Agreement on Guidelines for Classroom Copying" was authored by representatives of the educational community and publishers in 1976 and made part of the Congressional Record.³ Those guidelines generally provide a safe harbor for those who are hesitant about interpreting and applying the Fair Use Analysis. The "Agreement on Guidelines for Classroom Copying" is considered by some to be inappropriately restrictive for academic needs. More extensive copying will, in a number of instances, qualify under fair use, and the Fair Use Analysis should be utilized for copying that which goes beyond the minimum guidelines below.

¹ Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990).

² Answer to Frequently Asked Question #47, U.S. Copyright Office Web page, at http://lcweb.loc.gov/copyright/faq.html#q47.

³ House Report No. 1476, 94^th Cong., 2d Sess. 47 (1976) reprinted in 1976 U.S.C.C.A.N. 5681-88.

Agreement on Guidelines for Classroom Copying in Not for Profit Educational Institutions with Respect to Books and Periodicals

Single Copies for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

A chapter from a book;

An article from a periodical or newspaper;

A short story, short essay or short poem, whether or not from a collective work;or

A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.

Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that the copying meets the following tests of brevity, spontaneity, and cumulative effect. Each copy must also include prominent notice that it is copyrighted material.

Brevity

Prose: Either (1) a complete article, story or essay of less than 2,500 words, or (2) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in either case, a minimum of 500 words.

Poetry: (1) A complete poem if less than 250 words and if printed, not more than two pages, or (2) an excerpt of not more than 250 words.

(Each of the numerical limits above may be expanded to permit the completion of an unfinished prose paragraph or line of a poem.)

Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or periodical issue.

Special Works: Certain works in poetry or prose or in "poetic prose," which may combine language with illustrations and which fall short of 2,500 words, may not be reproduced in their entirety. However, an excerpt comprising not more than two of the published pages of such a work, and containing not more than 10% of the words found in the text, may be reproduced.

Spontaneity

The copying is at the instance and inspiration of the individual instructor, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

The copying of the material is for only one course in the school in which copies are made.

Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during a term.

There shall not be more than nine instances of such multiple copying for one course during a term. The latter two limitations listed do not apply to current newspapers and news periodicals.

Copying shall not be used to create or replace anthologies, compilations or collective works. There shall be no copying of works intended to be consumable, such as workbooks, test booklets, etc. No charge shall be made to the student beyond the actual cost of copying. Copying shall not substitute for the purchase of books, reprints or periodicals; be directed by a higher authority, or be repeated with respect to the same item by the same teacher from term to term.

If the use falls within the Safe Harbor Guidelines, permission is not required.

If the use DOES NOT fall within the Safe Harbor Guidelines, go to Step 3 – Fair Use Analysis.

Remember, professional help is available.

Step 3 – Fair Use Analysis

Since the purpose of the fair use test is to assure fairness in preserving both the owner’s and the user’s competing interests, determining what is fair is accomplished on a case-by-case basis. There are four basic competing policy interests to be examined in determining whether a use constitutes a fair use under copyright law. They are:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work (measured both quantitatively and qualitatively); and
4. the effect of the use upon the potential market or for value of the copyrighted work.

Each time an original work is copied, the copier should perform a reasoned analysis of the action using the four factors enumerated above from the fair use doctrine expressed in the 1976 Copyright Act. If a claim of copyright infringement is made, it is that reasoned analysis which must be articulated as your defense against the charge of infringement. The chart below, and the accompanying Questions and Answers section that follows, demonstrates how these four factors should be used in analyzing whether or not duplication of materials will be considered a fair use.

How You May Determine if Your Intended Use Is Fair Use

On the chart linked here, for each work that is to be reproduced, plot or mark where the work stands in relation to each of the factors described. Generally, the fair use analysis involves balancing the four factors together. If the weight of the factors leans towards "likely to be a fair use" or "favorable to fair use," then permission is not required. If the weight of the factors leans towards "likely to be a commercial use," then the use is not likely to be considered fair use and permission from the copyright owner must be obtained.

Questions and Answers

Q Do you have to be a lawyer to determine fair use?

A No. And being a lawyer does not guarantee that your determination of fair use would be upheld in court. Although you do not have to be a lawyer, if you choose to use the Fair Use Analysis, you must read the explanation of how it is applied, and be able to articulate why your copying was in good faith under the doctrine of fair use.

Q To avoid the effort of obtaining permission to copy materials, which would ordinarily be interpreted as an "anthology" (e.g., course pack), a faculty member chooses to keep only one copy of all the assigned readings in a departmental office. The students are instructed to get this copy from the office and photocopy their own sets for their "private" use. How legitimate is this?

A The central problem here is one of fair use and good faith. Passing to the students a task that the faculty member may not do without permission is suspect and lacks considerable good faith.

Q Is it okay to distribute to my class an occasional magazine or newspaper article that I have come across? Or, if I see an article in the morning paper and wish to circulate and discuss it, do I need to get permission to copy it first?

A Distributing an occasional article in class is, in most instances, a fair use and permission would not be required.

Q For my English literature class, I would like to make multiple copies of the appendix to the "The Western Canon: The Books and School of the Ages" by Harold Bloom. My plan is to give one copy to each of my students with the instruction that they choose eight titles to read over the semester from the "Books and School of Ages" listing in the appendix. Is this considered a fair use?

A Note that the book includes the standard copyright notice that reads:

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher.

The fact that the book includes a copyright notice does not automatically mean that it would not be a fair use to copy a part of the work. By the same token, the omission of the copyright notice from a work does not automatically mean that it would be a fair use to copy the work.

Applying the fair use doctrine, the purpose of the use is educational in nature and nonprofit, which would generally favor a finding of fair use. Making multiple copies for classroom use is specifically mentioned in the statute as something that might be a fair use.

The nature of the work is that it is published, which tips the balance in favor of finding fair use. Although the appendix merely lists the titles of books, there is clearly an element of creativity to this list. The author read all the books in original languages and then came up with his own listing of what he considered the best works to be. This was a writing "conceived as artistic or instructive creation, made in contemplation of publication."⁴ The fact that the work is primarily creative rather than factual would go against a finding of fair use.

The question posed by the third factor, how much or the amount and substantiality of the portion used in relation to the copyrighted work as a whole, involves both a quantitative and a qualitative assessment. It is not just the total number of pages, but how important those pages are in relation to the rest of the text. While the number of pages in the appendix is small in relation to the entire text of The Western Canon, some might make an argument that the heart of the book is contained in the appendix. In one case, ⁵ The Nation, a weekly news magazine, published 400 words of a memoir by former President Gerald Ford, prior to the scheduled publication in Time magazine. The court found these 400 words constituted the heart of the work and the use was not a fair one. A court might find the same with respect to copying the appendix to The Western Canon.

Finally, the market effect must be considered. In this instance, a one-time distribution of copies of the appendix to the students in a class would probably not result in substantial impairment and, assessing all factors together, it seems there is a good argument for fair use. Note, however, that if the professor were to post the appendix on his or her Web site home page without permission from the copyright owner, the market impairment is suddenly magnified, and a finding of copyright infringement is much more likely. If the professor is going to use the appendix repeatedly, then several copies of the text should be purchased and placed in the library, or the Copyright Clearance Center should be contacted with respect to payment of a licensing fee.

⁴ Pierre N. Levels, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1117 (1990).
⁵Harper & Row, Inc. v. Nation Enterprises, 471 U.S. 539 (1984).

Q Must the use of foreign publications be cleared for permission, etc.?

A Yes. Copyright law sets forth rights in both foreign unpublished and published works. Copyright was restored to many foreign works that were previously in the public domain in 1996 under the GATT and NAFTA international trade treaties.

Q What can I do if course material has been ordered for a class but is late in arriving at the bookstore?

A In this instance, it would probably be a fair use to copy selected excerpts from the work in question so that the class can have the material while waiting for the bookstore copies. There is good faith present in that the text is on order.

Caveats

If you think that fair use is appropriate, permission is not required.

However, even after determining that a work may be copied, other guidelines should be followed whenever feasible, including the following:

• The number of copies should be limited to the number of students in the class or, in an electronic environment, passwords or some other authentication method should be used to ensure that only students enrolled in that class have access to the copyrighted material;

• Web pages that contain copyrighted material for classroom use should be deactivated or made inaccessible when the class is over or the material is no longer needed;

• Duplicated, distributed, or displayed material should always include available bibliographic and copyright information;

• Each item in a course pack must include a notice of copyright (e.g., "Copyright 1990 by Academic Books, Inc.") if the material falls within the Safe Harbor or Fair Use Analysis, but not if the material is in the Public Domain; and

• Students should not be charged more than the actual cost of copying, producing, or otherwise making the material available.

If you think that fair use may be appropriate but you are not sure, go to Resources.

If there is serious doubt about fair use, asking permission is always the preferred choice.

If you think that fair use is NOT appropriate, go to Step 4 – Permission Required.

Remember, professional help is available.

Questions and Answers

Q Who gives copyright permission for manuscripts?

A The copyright holder which, with respect to manuscripts, is most often the author. If the author is deceased, then the estate or the descendants of the author may hold the copyright. It may take a bit of research to identify the copyright holder of a manuscript.

Q I use an out-of-print text for my classes. How can I obtain copies for my entire class to use or purchase?

A First, contact the copyright holder (see inside front page of the text) to see if permission may be obtained. If the publisher has no plans to republish, the copyright may have been transferred back to the author. In that case, the author should be contacted. If reasonable efforts to contact the copyright holder fail, then copies may be made for use in the classroom.

Q What if I request permission from a copyright owner and do not receive a response?

A You may wish to determine if there is some portion of the article or document that can be used under the Fair Use Analysis. If not, then the copyrighted work should not be used.

Q What if I ask a publisher if I may use a work and the answer is no. Is it possible to still use the work if it falls under fair use?

A Yes. A negative response from a publisher does not negate your fair use rights.

Sample Permission Request Letter

Available in PDF format.

Dear Sir or Madam:

I am writing to request permission to:

• Make photocopies for library reserve.

• Place on electronic reserve (all electronic reserve items are password protected and may be accessed only by students in the class).

• Make photocopies for my students in class.

Material Requested:

Title of Book/Periodical/Journal:

Full Name of Author(s):

Volume/Issue/Edition #:

Date of Publication (copyright date or issue date):

ISBN (books only):

ISSN (journals/periodicals only):

Beginning on page __________, line __________, with the words

Ending on page __________, line __________, with the words

Illustration/Figure No. __________ on page __________ (photocopy attached)

Chart No. __________ on page __________ (photocopy attached)

• The copies would be placed on reserve for __________ semesters

• The copies would be distributed to students for __________ semesters

If there is a licensing fee for this use, please contact me with that information.

If there is no fee, please simply sign the permission line below and return this letter in the self-addressed stamped envelope.  If you do not solely control copyright in the requested materials, I would appreciate any information you can provide about others to whom I should write, including most recent address, if available.

Sincerely yours,

Name

Title

Agreed and Accepted:

By:

Authorized Signature

Name:

Title:

Fee: __________________ Fee Waived: __________________

Credit Line:

Copyright Notice:

Other Remarks:

Resources

The CUA Office of General Counsel is available to assist in answering your copyright questions.

Phone: (202) 319-5142; Fax: (202) 319-4420; E-mail: odonnelm@cua.edu

The CUA Office of General Counsel provides additional information on copyright and copying rights, online in print form.

Copyright Guidelines (additional topics covered):
Fair Use: Photocopying Music
Library Reproduction
Audiovisual Materials
Computer Software
Performances
Liability for Online Activities

Your Copying Rights Under Copyright Law

What is the Public Domain?

What About MP3s?

CUA Faculty/Staff Certification of Copyright Compliance Form

Of Counsel - Cyberspace - August 1998

CUA Libraries Copyright Information

Copyright Questions and Answers

Copyright and Music

Sample Permission Request Letter

Resources:

The University of Texas has posted an excellent Web site that contains a very clear explanation of fair use written by Georgia Harper, an attorney for the University of Texas and a leading expert in copyright.
See also "When Copying is OK: The ‘Fair Use’ Rule."

Permission Services

Course packs

The only place on campus to offer the production of course packs is the CUA Bookstore. This is a full service operation, and the bookstore has a subcontractor who will obtain permission to make copies, and produce the course pack. Call 319-5232 for information regarding the production, cost and distribution of custom produced materials to be sold in the Bookstore or create a course pack online.

Note that the bookstore will not sell any "course packs" that are not produced through the bookstore's subcontractor, XanEdu Publishing Services. XanEdu offers both digital and print course packs.  The turn-around time for course packs through the Bookstore is approximately 4-6 weeks. If all of the material is drawn from XanEdu archives, a digital course pack can be produced in as little as 24 hours.

Full indemnification for compliance with copyright law is offered by XanEdu for any course pack they produce. Public domain, fair use, CUA licensed materials and articles you have authored can be included in the XanEdu Course pack, but you will be asked to sign a form verifying copyright compliance, and XanEdu will not offer indemnification for those articles. If there are questions regarding this issue, contact the Office of General Counsel at ext.5142.

E-Reserves

An alternative route for the delivery to students of materials is to have the Library post documents as electronic reserve materials. Call the Mullen Library at ext. 5060. Further information on electronic reserves and copyright can be found online. You will be asked to sign a Reserve Request Form that states that you accept responsibility for full compliance with copyright law regarding any materials that are posted on electronic reserve.

Professors are warned against posting materials on their own web pages for a course without seeking clearance as needed for copyrighted materials. Once again, the Office of General Counsel can assist with copyright questions.

Feedback

Thank you for taking the time to review and/or use this instructional guide.   Please send your comments and suggestions to odonnelm@cua.edu.

Revised 9/1/04
links updated 8/29/08 rab

page updated and links checked 3/27/09 mlo