What is the Public Domain, and is it a Good Thing?

By George Howard

Overview

“Public Domain” is one of those phrases that is tossed around a lot in the music business, but, I fear, frequently misunderstood.  It applies to works that have fallen out of copyright.  This article discusses why and when a work goes into the public domain, and raises the question as to the validity (or lack thereof) of this concept.


Intellectual Property and the Public Domain

As we have discussed in prior articles, when an author fixes an original work in a tangible form, he or she is immediately granted six exclusive rights.  Similarly, when an individual or firm is granted a trademark or patent, the holder of either, like the holder of a copyright, has a limited duration monopoly.  Copyright, trademark, and patent are all elements of Intellectual Property (IP), and, as with real property (i.e. real estate, etc.), the owner of the IP has certain exclusive rights.

Unlike real property, however, copyright and patent rights eventually become non-exclusive, and fall into the public domain (trademark, if adequately protected and used, like real property, has no such expiration).

Patents expire after twenty years. Upon expiration, the invention falls into the public domain.  This is why, for instance, you will see so-called generic prescription drugs appear on the market (at a much reduced price) after the patents for brand-specific drugs have fallen into the PD.

For copyright, there are two terms to be aware of with respect to when a copyrighted work falls into the PD.  The first relates to copyrights held by individuals.  In these cases, the copyright for the work held by the individual falls into the PD seventy years after the death of the last-living author of the work (so long as the work was published since 1978) in the US.  That is, if a copyright is a joint work, the term lasts seventy years from the death of the co-writer who lived the longest.  The second relates to copyrights created by corporations and/or works made for hire and/or anonymous works.  In the US, these copyrights have a term of ninety-five years from publication or 120 years from creation, whichever is shorter.  All signatories to the Berne Convention, which strove to unify copyright protection across countries agree to some exclusive duration prior to works falling into the PD.  The duration varies from country to country. A complete list can be found here.

Thus, whether a work was created by an individual or a firm, it will eventually enter the public domain.  At which point, all of the exclusive rights that the creator enjoyed while the work was under copyright expire, and the work can be used, in any fashion, by whomever sees fit to do so without risk of reprisal for infringement.

Arguments for and Against the Public Domain

The question that should arise at this point is, “Why is there a PD, and/or why isn’t everything in the PD?”  Copyright, generally, and the PD specifically have been the focus of much scrutiny as new technologies have emerged to not only allow for easy file sharing, but also for easy collaboration (mash ups, remixes, etc.).  Current copyright law disallows the creation of derivative works (mash ups, remixes, etc.) unless the copyright holder of the original work gives permission.  Of course, if a work is in the PD, it can be remixed and mashed up with impunity.  These re-workings of copyright serve as a decent entrée into what appears to be at the root of the two competing points of view with respect to public domain.

Those in favor of terms of exclusivity for the creator of works tend to take the stance that these works are valuable, and that they, the creator/owner of the work/copyright, should benefit financially should these works be exploited.  Additionally, they feel that they should be able to take legal action, based on their exclusive rights, should someone infringe upon their copyright.  For example, if someone does a re-mix of one of their copyrighted works without getting their permission/negotiating a deal, the holder of the copyright should be able to sue in order to stop the infringer from exploiting the work, and/or be awarded damages.

Those in favor of works either falling into the PD more rapidly or not being protected by copyright at all feel that the exclusivity of copyright does not promote innovation.  There are varying degrees of reform along the spectrum put forth by those who oppose the current exclusive terms on copyright.  Some, like Lawrence Lessig, have proposed a so-called Creative Commons license that allows for creators to opt out of some or all of the exclusive rights that one attains upon creating an original work and fixing it in a tangible form.  Others in the so-called “copy left” camp create a sort of licensing dynamic, in which works (often computer programs/source code) are intended to adhere to a freely distributable paradigm; often under the GNU General Public License.

Conclusion

The issue tends to boil down to those who feel that their works should be protected so that they (the creator/copyright holder) can be rewarded for their work and investment and those who feel that doing so (i.e. protecting the works) diminishes the likelihood of innovation and collaboration.

This tension tends to get exacerbated when large corporations lobby successfully to extend copyright duration, such as the Copyright Term Extension Act of 1998, which is occasionally referred to as the “Mickey Mouse Protection Act.”

Of course, there are now countless examples of holders of copyright giving, for instance, digital versions of their works away, and attempting to monetize other versions of the same work.  For instance, The Cluetrain Manifesto (which you should read) can be read and downloaded for free online, but you can also buy the book itself.  Similarly, artists are constantly giving away music (either for an email, or, as I’ve suggested, by taking a cue from the social entrepreneurship paradigm of “buy one, give one free,” or in many other ways) in the hopes that doing so will increase awareness of their work, and that this will ultimately drive revenue.

It’s important to note that the examples above require a copyright system to be in place in order for those who hold the copyright to attempt to leverage their opting out of the system to a degree.

In any case, it’s a fascinating time to wrestle with copyright, and undeniably we will continue to do so as technologies evolve.

Give us your opinions on whether or not you feel copyright should grant an author exclusivity, and, if so, how long?

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George Howard is the former president of Rykodisc. He currently advises numerous entertainment and non-entertainment firms and individuals. Additionally, he is the Executive Editor of Artists House Music and is a Professor and Executive in Residence in the college of Business Administration at Loyola, New Orleans. He is most easily found on Twitter at: twitter.com/gah650

  • http://www.myspace.com/andrewspinkmusic Andrew

    “Those in favor of works either falling into the PD more rapidly or not being protected by copyright at all feel that the exclusivity of copyright does not promote innovation.”
    This logic is completely backwards. The exclusivity of copyright does not hinder innovation. In fact, exclusivity is the means by which all innovation is protected. Imagine a world with no or limited copyright protection. Any song you write could be used and altered by anyone else, with no credit being paid to you, either monetarily, or through the prestige associated with the work.
    As a musician I can relate the frustration over getting permission for sampling. Of course, I’m not well-known enough to have the opposite problem, which would be much more severe. I would not want my music sampled without permission, especially if the content of the new work is something that I might not necessarily agree with. Let’s try to get real. Of course, I think it’s a problem when lobbyists get in there just to protect Mickey Mouse, but having no or limited protection is simply absurd.

  • http://www.monroevilleband.com Matthew Munsey

    I’m curious to know if there are arrangement rights for PD songs that can be collected by artists that rearrange a particular piece. This was tossed around by some of our band members when we discussed cutting a PD songs as a single that we had rearranged. Any suggestions on this?

  • Kaveeka

    Protection of your creation is a very important right. Singing harmony with Andrew, I agree expecially with the fact of getting credit and recognition for your IP which is sometimes more important than monetary gain. Innovation is not hindered if all someone has to do is get permission and make an agreement!
    By getting permission from the originators of the work for a derivative of the original work of art is just that, getting permission and the right to use something that actually belongs to someone else. Otherwise it is stealing!
    From the historical perspective, everyone would like to go down in history for what they have achieved or produced. Not withstanding, everyone should be rewarded and paid for their creations exclusively. For many many years songwriters, artists and performers have been robbed of their work, recognition, fame and money by unscrupulous individuals.
    We’re not talking calculous here but the right of ownership and who was intellectual enough to create this work of art with the entitlements it may bring. And it is work! Even if we love it! We also know, that sometimes a derivative work has been known to make the original more famous or succesful.
    That being said, without legal, exclusive rights with entitlements to your own (works)song and/or music there is no foundation for legitmate sharing. For everyone will want to know who wrote the song and who performed it more so than who published it.

  • http://www.missincinatti.com j.c.

    i’d like to know the answer to the same question that Matthew M. (above) asked. i was in a band for 6yrs and many of our songs were re-arrangements, often created together, of 200yr old shape note hymns. the leader of the band refuses to share credit/rights for those songs. every original member resigned from the band and she continues to use our material, teach it to others, and sell our 3 albums for her own profit. any extra advice on such issues would always be appreciated. thank you.

  • Edie

    Copyright protection gives peace of mind to the
    creator, and is well worth the small investment.
    Unscrupulous persons who want to negate these laws
    are thieves!

  • http://myspace.com/henrylincoln henrylincoln@yahoo.com

    It really don’t make any different if your song is
    copyrighted.If you don’t have any money to pay an
    Attorney you still can’t sue.I know because I’m going
    Thur this kind of issues right now.The artist that stole my song is very famous and made a lot of money
    and still is.My song is on a lot of website,including
    Tunecore.I’m still trying to find an attorney.If anyone
    out there that can help me or give me some advice,please contact me.

  • http://www.jeffmacdougall.com Jeff MacDougall

    We’ve had copyright so long now that anyone can assert your argument with no need (or ability) to back it up with proof. But if you glance at the food or fashion industries (which have no copyright) you can see almost instantly that the belief that copyright is necessary is probably false.
    Famous chefs and designers do quite well and are every bit as well known as any famous musician. And they do it without having to “register” a recipe or clothing design. The idea that there would be “no foundation for legitimate sharing” sounds like nice bit of logic… but really, you have no idea.
    We’ll never really know if the world would be a better place without copyright unless we try to go without it. And that’s never going to happen.

  • http://profile.typepad.com/generanson Gene Ranson

    Copyrights should be the exclusive rights of the Author,Musician,Artist or Photographer.This exclusive right should be passed on to the heirs of the Family and anyone who in my opnion pirateing any works should be held Criminally and monetarily accountable. This right should be for the life of any heir of the artist of the original work.If a work is a collaberative venture then all heirs are the true owners of all works.As with copyrights that are mailed through the United states Postal Service and by the artist mailed gto himself has the same rights as the Library of congress issues.When a Musician ,Composer or Artist sits with an instrument and out of the air render a song or anyother works to the World is the true exclusive owner of their works and should never enter the Public Domain Rhelm.As with any property and the author upon making a will designate to whom said works are to become the owner of those works.No Time Limitations and No altered versions of works should be allowed.

  • http://www.dannymcmaster.com.au Danny

    If you record a PD song/s, you can own/copyright the arrangement/s but you must register the arrangement, siting it as your own or a collabaration stating the percentage/s as they are relevant.
    Matthew M. & J.C., check to see if the recordings are registered with the appropriate copyright agencies in your country.

  • http://www.aqualash.com Michael

    The argument that copyright hinders innovation is completely flawed.
    Simply look at the evolution of music and ideas in the last 50 years alone…did copyright hinder any of that?
    And the person who compares music to a recipe obviously doesn’t understand the role an artist plays in society.
    The internet has made artists completely market driven, and thats what is hindering innovation.

  • paul proudlove

    why did minny mouse want a divorcee from micky mouse ? she was —-ing Goofy ?

  • http://www.jango.com/music/mikealike MikeAlike(independent recording artist)

    Copyright forces people to create original works…it actually makes progress and protects peoples expression. The fact that the major recording businesses within recent years blatantly rip each other off and original artists as well, shows their complete lack of respect, integrity, ingenuity and interest. Somebody told me record labels now cater to consumers- that’s the most pathetic excuse to give them for trying to control their profit margin by providing a product they specify for sales. Its a common understanding that risk takers succeed in business and the record labels have played it safe for years, marketing bland, retarded dumbed down product, attempting to manipulate trends, making music which is samples of others work to seem familiar or to capture feelings thru regurgitating past melodies. Also their tactics have inspired countless numbers of desperate wanna be’s to do the same and profit.
    Did I mention their businesses collapsed and multitudes of artists never get paid-while knock off’s and assholes with huge karaoke attitudes run prime spots? No hunh?
    Anyway as far “Re:Invention” goes, its a scam, so is concept that people can be bought and sold.

  • http://www.renelabre.com Rene Labre

    Your copyright is your only protection from illegal exploitation of your original created works.It is proof postive of not only your creation but also your “first use” of the work.It is he only thing that will stand in a court of law.Your mom and a registered letter you sent to yourself testifying you wrote the song is not going to make it.Add to this that you must join a performance rights society and register your work with them as well.If someone has an interest in your tune this is where they are going to look to find the contact information.Henceforth every time and in everyway the tune is presented you want a circled “C” and “P” with the registration date.This is an industry rife with some pretty shitty characters to say the least.And on your way up you are going to meet some of them and they will try to screw you in any way you can imagine.The power of the copyright is not going to go away and if you are really serious about this you will represent yourself with these professional credentials.May good fortune smile on you,keep on dreaming!renelabre.com

  • http://backtalkunlimited.com Thorpe Ziegler

    I feel very strongly both ways!

  • Pete

    what is your song?

  • http://www.lucygenick.org bryan cooper

    try using the creative commons liscense:
    http://creativecommons.org/licenses/by-nc-nd/3.0/

  • http://pulse.yahoo.com James Bedu Graham

    1.I CALL FOR A TRUCE AND I TRULY BELIEVE EVERY INDIVIDUAL COMPOSER AND CREATOR SHOULD BE GIVEN A COPYRIGHT ID NUMBER JUST LIKE AT THE UNIVERSITY AND CARS AND SHIPMENTS ARE REGISTERED. FOR EXAMPLE DORIS LUKUNDA LICENCIA NUMBER 118890 JAZZ COMPOSER 2011-2031.
    GRANTED FOR PERFORMANCE RECORDINGS AND ROYALTY PAYMENTS.
    2.THIS LIST SYSTEM IS ONE WAY TO TRACK THE NUMBER AND INTEREST IN THE FIELD.IT IS ALREADY USED TO REGISTER PROPERTIES LIKE LANDS, BUILDINGS ,CARS ,RESTAURANTS AND EVEN COLLEGE STUDENTS.
    3.IT WILL SANITIZE THE SYSTEM JUST LIKE IT HAS DONE FOR ENGINNEERING SYSTEMS COMPANIES.
    4.AS YOU HAVE SAID PROGRESSIVE COUNTRIES LIKE THE USA AND THE UNITED KINGDOM HAVE MADE THE 50 YEAR PERIOD.
    5.MOREOVER AFTER DEATH 70 YEARS.
    6.I BRING FORWARD THE TIME SCALE OF 25 TO 30 YEARS AS THE STANDARD TIME FRAME.
    7.THIS SUBJECT GOES BEYOND MUSIC FOR RADIO TELEVISION TEXT MESSAGES LETTERS,OFFICE DOCUMENTS AND EVEN SCULPTURES ARE IN THE DOMAIN BASKET.
    8.AS YOU SPECIFIED COURT RULINGS IN MATTERS OF INTELLECTUAL PROPERTIES WILL SPRING UP AND RADICALLY ALTER THE BALANCE OF EXISTING LAWS ESPECIALLY WITH THE ADVANCE OF COMPUTER MEDIA AND INTERNET TECHNOLOGIES.
    9.I BELEIVE A RATIONAL DECISION WILL ARISE AND CREATIVE PEOPLE SHOULD NOT FACE FEAR FOR THE PRESENT AND FUTURE DIVIDENDS IN TERMS OF RECOGNITION AND FINANCIAL RETURNS.
    10.I AM NOW EARNING 4000 BRITISH POUNDS A YEAR DUE TO A WRITTEN CONTRACT I MADE WITH A DANISH RECORD LABEL AND IT MIGHT GROW UP WITH TIME IN TERMS OF VALUE.
    11.SO PEOPLE OUT THERE GET CREATIVE IN ALL FIELDS OF MEDIA.
    OF COURSE DO NOT FORGET THE MUSIC FIELD FOR BEYOND THE MONEY SYNDROME IT IS AN EXPRESSION OF HUMANITY.
    THAT IS WHY SOME AUTHORITIES ARE CANCELLING THE SUBJECT FROM THE CURRICULLUM AS THEY KNOW THE POWER IT CAN UNDERMINE THE SYSTEM OF DOING OF THINGS AS THE ESTABLISHMENT WANTS TO KEEP POWER.
    YOURS FAITHFULLY AND SINCERELY JAMES BEDU GRAHAM.

  • http://www.twitter.com/gah650 George Howard

    Andrew,
    thanks for weighing in. hopefully it was clear from the article that i wasn’t taking sides (though you could likely guess my opinion), but just trying to present the information.
    best,
    George

  • http://www.twitter.com/gah650 George Howard

    You can get a (c) on an arrangement of a PD work. Your arrangement must be materially different from the PD work in order for it to be (c)’able.
    George

  • http://www.twitter.com/gah650 George Howard

    all great points, and to be clear, only the holder of the (c) can grant another the right to create a derivative.
    GH

  • http://www.twitter.com/gah650 George Howard

    couple issues here:
    1. yes, if your arrangements of the PD works are material in nature, you can (c) the arrangements.
    2. if these arrangements were jointly created by two or more authors (all making material contribution to the melody and/or lyric of the arrangements), then the (c) of the arrangement should be divided between the authors.
    GH

  • http://www.twitter.com/gah650 George Howard

    certainly respect your opinions with respect to duration of (c), but remember, mailing a work to yourself (poor man’s (c)) doesn’t offer protection.
    GH

  • http://www.twitter.com/gah650 George Howard

    well said, but make the distinction between registering your work with the (c) office and your song submittal form for your pro (ascap/bmi) – very different things.
    GH

  • http://www.twitter.com/gah650 George Howard

    thanks for this link, Bryan.
    GH

  • http://www.twitter.com/gah650 George Howard

    cool manifesto.
    George

  • beulah

    Yeah, henrylincoln – what is your song?
    Good question Pete!

  • http://profile.typepad.com/incredibl Robert Incredibl

    The system was fine and fair(and simpler) before the Sonny Bono law.
    We should repeal the current law and go back to the the one that was in place in the 70’s.

  • http://www.reverbnation.com/launicairishband La Unica

    Our band is considering covering traditional Irish tunes which were likely composed in Ireland, but they were first written down in the US in 1923, 1927, and 1957 respectively. We understand that there’s some rule about 1922– that in the US, the song has to be written down prior to 1922 to be in the public domain, is that correct? And what of songs that weren’t written in the US?

  • Jim

    Simply…….I believe creation of a song is like having a child. They are yours forever…they carry with them the essense of who you are but in a different format…..but still they belong to you…and so will the heritage of future generations carry that same essense….which should not ever be considered free to anyone else.

  • http://www.facebook.com/profile.php?id=628338783 Michael ServingGod Johnson

    google: MJ Hustla