Surveying The Public Domain

Jan 10, 2019

Who can use Shakespeare’s work?

The answer: All of us. Shakespeare’s plays and sonnets are among many works of art, literature and music that are in the public domain.

The Stanford University Library describes the public domain as “creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws…Anyone can use a public domain work without obtaining permission, but no one can ever own it.”

And on New Year’s Day this year, many seminal works from 1923 entered the public domain. This collection includes a film by Charlie Chaplin, “Jacob’s Room” by author Virginia Woolf and the song “Yes, We Have No Bananas.”

“Artists of all kinds — writers, musicians, filmmakers, painters — rely on the public domain: ‘Poetry can only be made out of other poems, novels out of other novels,’ as the critic Northrop Frye put it,”

according to The Center for the Study of Public Domain at Duke University, writing about why the public domain is so important.

But they note that the public domain is limited:

…because of term extensions, we’ve had to wait almost a century before copyrighted works enter the public domain (in 2019, works from 1923 are finally freely available). Under current copyright terms – life plus 70 years for natural authors, and 95 years from publication for works of corporate authorship – you’re unlikely to see any works created in your lifetime enter the public domain. This imposes great (and in many cases unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, it imposes costs on our collective culture. Even for the works that are still commercially available, the shrinking public domain increases costs to citizens and limits creative reuse. But at least those works are available. Unfortunately, much of our cultural heritage, perhaps the majority of the culture of the last 80 years, consists of the orphan works described above—works that have no identifiable or locatable copyright holder. Though no one is benefiting from the copyright, they are nevertheless presumptively off limits.

We’re talking about what work is now available and how copyright laws protect — and limit — creators.


Jennifer Jenkins, Professor, Duke University School of Law; director, Center for the Study of the Public Domain; co-author, “Tales from the Public Domain: Bound By Law?”

James Boyle, Professor, Duke University School of Law; faculty co-director, Center for the Study of the Public Domain; co-author, “Tales from the Public Domain: Bound By Law?”;@thepublicdomain

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