The
public domain is an
intellectual property designation for
the range of content that is not owned or controlled by anyone.
These materials are "public property", and available for anyone to
use freely for any purpose. The public domain can be defined in
contrast to several forms of intellectual property; the public
domain in contrast to
copyrighted works is different from
the public domain in contrast to
trademarks or
patented works. Furthermore, the
laws
of various countries define the scope of the public domain
differently, making it necessary to specify which jurisdiction's
public domain is being discussed.
The public domain is most often discussed in contrast to works
whose use is restricted by
copyright.
Under modern law, most original works of art, literature, music,
etc. are covered by copyright from the time of their creation for a
limited period of time (which varies by country). When the
copyright expires, the work enters the public domain. It is
estimated that currently, of all the books found in the world's
libraries, only about 15% are in the public domain, even though
only 10% of all books are still in print; the remaining 75% are
books which remain unavailable because they are still under
copyright protection.
The public domain can also be defined in contrast to
trademarks. Names, logos, and other identifying
marks used in commerce can be restricted as proprietary trademarks
for a single business to use. Trademarks can be maintained
indefinitely, but they can also lapse through disuse, negligence,
or widespread misuse, and enter the public domain. It is possible,
however, for a lapsed trademark to become proprietary again,
leaving the public domain.
The public domain also contrasts with
patents. New inventions can be registered and granted
patents restricting others from using the inventions without
permission from the inventor. Like copyrights, patents last for a
limited period of time, after which the inventions covered by them
enter the public domain and can be used by anyone.
No legal restriction on use
A creative work is said to be in the public domain if there are no
laws which restrict its use by the public at large. For instance, a
work may be in the public domain if no laws establish
proprietary rights over the work, or if the work
or its subject matter are specifically excluded from existing
laws.
Because proprietary rights are founded in national laws, an item
may be public domain in one jurisdiction but not another. For
instance, some works of literature are public domain in the United
States but not in the
European Union
and vice versa.
The underlying
idea that is expressed or
manifested in the creation of a work generally cannot be the
subject of copyright law (see
idea-expression divide). Mathematical
formulæ will therefore generally form part of the public domain, to
the extent that their expression in the form of software is not
covered by copyright; however, algorithms can be the subject of a
software patent in some
jurisdictions.
Works created before the existence of copyright and patent laws
also form part of the public domain. For example, the
Bible and the inventions of
Archimedes are in the public domain, but
copyright may exist in
translations or
new formulations of these works.
Although "intellectual property" laws are not designed to prevent
facts from entering the public domain, collections of facts
organized or presented in a creative way, such as categorized
lists, may be copyrighted. Collections of data with intuitive
organization, such as alphabetized directories like telephone
directories, are generally not copyrightable. In some countries
copyright-like rights are granted for databases, even those
containing mere facts.
Works of the United
States Government and various other governments are excluded
from copyright law and may therefore be considered to be in the
public domain in their respective countries. In the United States,
when copyrighted material is enacted into the law, it enters the
public domain. Thus, the building codes, when enacted, are in the
public domain. They may also be in the public domain in other
countries as well. "It is axiomatic that material in the public
domain is not protected by copyright, even when incorporated into a
copyrighted work."
Expiration
In most countries, the term for patents is 20 years, after which
the invention becomes part of the public domain.
A
trademark registration may remain in
force indefinitely, or expire without specific regard to its age.
For a trademark registration to remain valid, the owner must
continue to use it. In some circumstances, such as disuse, failure
to assert trademark rights, or common usage by the public without
regard for its intended use, it could become
generic, and therefore part of the
public domain.
The expiration of a copyright is more complex than that of a
patent.
Historically the United States
has specified terms of a number of years following
creation or publication; this number has been increased several
times. Most other countries specify terms of a number of
years following the death of the last surviving creator; this
number varies from one country to another (50 years and 70 years
are the most common), and has also been increased in many of them.
See
List of
countries' copyright length. Legal traditions differ on whether
a work in the public domain can have its copyright restored. Term
extensions by the U.S. and Australia generally have not removed
works from the public domain, but merely delayed the addition of
works to it. By contrast, a European Union
directive
harmonizing the term of copyright protection was applied
retrospectively, restoring and extending the terms of copyright on
material previously in the public domain.
United States law
Copyright law in the United States has changed several times.
Although it is held under
Feist v.
Rural
that Congress does not have the power to re-copyright works that
have fallen into the public domain, re-copyrighting has happened:
"After World War I and after World War II, there were special
amendments to the Copyright Act to permit for a limited time and
under certain conditions the recapture of works that might have
fallen into the public domain, principally by aliens of countries
with which we had been at war."
Works "
prepared by an
officer or employee of the U.S. government as part of that person's
official duties" are automatically in the public domain by law.
Examples include
military journalism,
federal court opinions (but not
necessarily state court opinions),
congressional committee reports, and
census data. However, works
created by a contractor for the government are still subject to
copyright. Even public domain documents may have their availability
limited by laws limiting the spread of
classified information.
At most, terms end 120 years after publication in the United
States, but they may end or have already ended sooner in certain
situations.
Since 1978
A work that is created (i.e. fixed in tangible form for the first
time) after January 1, 1978, is automatically protected from the
moment of its creation and is given a term lasting for the author’s
life, plus an additional 70 years after the author’s death. In the
case of “a joint work prepared by two or more authors who did not
work for hire,” the term lasts for 70 years after the last
surviving author’s death. For works made for hire, and for
anonymous and pseudonymous works (unless the author’s identity is
revealed in Copyright Office records), the duration of copyright
will be 95 years from first publication or 120 years from creation,
whichever is shorter.
Before 1978, unpublished works were not covered by the federal
copyright act. Rather, they were covered under (perpetual)
common law copyright. The
Copyright Act of 1976, effective 1978,
abolished common law copyright in the United States so that all
works, published or unpublished, are now covered by federal
statutory copyright, with the exception of sound recordings fixed
before February 15, 1972. The claim that "pre-1923 works are in the
public domain" is correct only for published works; unpublished
works are under federal copyright for at least the life of the
author plus 70 years. For a work made for hire, the copyright in a
work created before 1978, but not theretofore in the public domain
or registered for copyright, subsists from January 1, 1978, and
endures for a term of 95 years from the year of its first
publication, or a term of 120 years from the year of its creation,
whichever expires first. If the work was created before 1978 but
first published 1978–2002, the federal copyright will not expire
before 2047.
Until the
Berne Convention Implementation Act of 1988, the lack of a
proper copyright notice would place an otherwise copyrightable work
into the public domain, although for works published between
January 1, 1978 and February 28, 1989, this could be prevented by
registering the work with the Library of Congress
within five years of publication. After
March 1, 1989, an author's copyright in a work begins when it is
fixed in a tangible form; neither publication nor registration is
required, and a lack of a copyright notice does not place the work
into the public domain.
1964 to 1977
Works published with notice of copyright or registered in
unpublished form in the years 1964 through 1977 automatically had
their copyrights renewed for a second term.
Before 1964
Works published with notice of copyright or registered in
unpublished form on or after January 1, 1923, and prior to January
1, 1964, had to be renewed during the 28th year of their first term
of copyright to maintain copyright for a full 95-year term.
With the exception of maps, music, and movies, the vast majority of
works published in the United States before 1964 were never renewed
for a second copyright term.
Sound recordings
Very few sound recordings are in the public domain in the United
States. Sound recordings fixed in a tangible form before February
15, 1972, have been generally covered by common law or in some
cases by anti-piracy statutes enacted in certain states, not by
federal copyright law, and the anti-piracy statutes typically have
no duration limit. The 1971 Sound Recordings Act, effective 1972,
and the 1976 Copyright Act, effective 1978, provide federal
copyright for unpublished and published sound recordings fixed on
or after February 15, 1972. Recordings fixed before February 15,
1972, are still covered, to varying degrees, by common law or state
statutes. Any rights or remedies under state law for sound
recordings fixed
before February 15, 1972, are not
annulled or limited by the 1976 Copyright Act until February 15,
2067. On that date, all sound recordings fixed before February 15,
1972, will go into the public domain in the United States.
For sound recordings fixed
on or after February 15, 1972,
the earliest year that any will go out of copyright and into the
public domain in the U.S. will be 2043, and not in any substantial
number until 2048. Sound recordings fixed and published on or after
February 15, 1972, and before 1978, which did not carry a proper
copyright notice on the recording or its cover entered the public
domain on publication. From 1978 to March 1, 1989 the owners of the
copyrights had up to five years to remedy this omission without
losing the copyright. Since March 1, 1989, no copyright notice has
been required.
British law
British
government works are restricted by either Crown copyright or Parliamentary copyright.
Published Crown copyright works become public domain at the end of
the year 50 years after they were published, unless the author of
the work held copyright and assigned it to the Crown. In that case,
the copyright term is the usual life of author plus 70 years.
Unpublished Crown copyright documents become public domain at the
end of the year 125 years after they were first created. However,
under the legislation that created this rule, and abolished the
traditional
common law perpetual
copyright of unpublished works, no unpublished works will become
public domain until 50 years after the legislation came into
effect. Since the legislation became law on August 1, 1989, no
unpublished works will become public domain under this provision
until 2039. Parliamentary copyright documents become public domain
at the end of the year 50 years after they were published. Crown
copyright is waived on some government works provided that certain
conditions are met.
Laws of Canada, Australia, and other Commonwealth nations
These numbers reflect the most recent extensions of copyright in
the United States and Europe. Canada and New Zealand have not, ,
passed similar twenty-year extensions. Consequently, their
copyright expiry times are still life of the author plus 50 years.
Australia passed a 20-year copyright extension in 2004, but delayed
its effect until 2005, and did not make it revive already-expired
copyrights. Hence, in Australia works by authors who died before
1955 are still in the public domain.
As with
most other Commonwealth of
Nations countries, Canada
and Australia follow the general lead of the United
Kingdom on copyright of government works. Both have a
version of Crown Copyright which lasts for 50 years from
publication.
New
Zealand
also has Crown copyright, but has a much greater
time length: at 100 years from the date of
publication.
Photographs taken before 1955 are now out of copyright in
Australia.
Thai law
According
to Thai
copyright
law, the copyright term is the life of author plus 50 years.
When the author is a
legal entity or
an
anonymous person, the copyright term is
50 years from the date of publication. Works of applied art
(defined as a work which takes a composition of works such as
drawings, paintings, sculpture, prints, architecture, photography,
drafts, and models for utility or functional use) have a copyright
term of 25 years from publication. Republication of works after the
expiration of the copyright term does not reset the copyright term.
Thai state documents are public domain, but creative works produced
by or commissioned by government offices are protected by
copyright.
Japanese law
Japanese copyright law does
not mention public domain. Hence, even when some materials are said
to be "in the public domain" there can be some use restrictions. In
that case, the term
copyright-free is
sometimes used instead.
Many pre-1953 Japanese and non-Japanese films are considered to be
in the public domain in Japan.
Examples
The most basic example of what is in the public domain are works
such as
national anthems and
traditional songs such as "
Auld Lang
Syne."
In the United States, the images of
Frank
Capra's film,
It's a
Wonderful Life (1946) entered into the public domain in
1974, because the copyright holder failed to file a renewal
application with the Copyright Office during the 28th year after
the film's release or publication.
However in 1993, Republic Pictures
utilized the 1990 United States Supreme Court
ruling in Stewart
v. Abend
to enforce its claim of copyright because the film was a
derivative work of a short story that was
under a separate, existing copyright, to which Republic owned the
film adaptation rights, effectively regaining control of the work
in its complete form.
Charles Chaplin re-edited and scored
his 1925 film
The Gold Rush
for reissue in 1942. Subsequently, the 1925 version fell into the
public domain when Chaplin's company failed to renew its copyright
in 1953, although the 1942 version is still under US
copyright.
The distributor of the cult film
Night of the Living Dead,
after changing the film's title at the last moment before release
in 1968, failed to include a proper copyright notice in the new
titles, thereby immediately putting the film into the public domain
after its release. This provision of US copyright law was revised
with the
United
States Copyright Act of 1976, which allowed such negligence to
be remedied within five years of publication.
Some works may never fully lapse into the public domain. A
perpetual
crown copyright is held
for the
Authorized King
James Version of the Bible in the UK. While the copyright of
the play
Peter Pan, or the Boy
Who Wouldn't Grow Up by
J.
M. Barrie has
expired in the United Kingdom, it was granted a special exception
under the Copyright, Designs and Patents Act 1988
(Schedule 6) that requires royalties to be paid for
performances within the UK, so long as Great Ormond
Street Hospital
(to whom Barrie gave the rights) continues to
exist.
A number of TV series in America have lapsed into the public
domain, in whole or only in the case of certain episodes, giving
rise to wide distribution of some shows on DVD. Series that have
only certain episodes in the public domain include
Petticoat Junction,
The Beverly Hillbillies,
The Dick Van Dyke
Show,
Bonanza, and
Annie Oakley,
while
Decoy is an example
of a series that lies completely within the public domain.
Disclaimer of interest
Laws may make some types of works and inventions ineligible for
monopoly; such works immediately enter the public domain upon
publication. Many kinds of mental creations, such as publicized
baseball statistics, are never
covered by copyright. However, any special layout of
baseball statistics, or the like, would
be covered by copyright law. For example, while a
phonebook is not covered by copyright law, any
special method of laying out the information would be.
For example:
U.S. copyright
law, , releases all
works created by the U.S.
government into the public domain. U.S. patent applications
containing a copyright notice must also include a disclaimer of
certain exclusive rights as part of the terms of granting the
patent to the invention (leaving open the question regarding
copyright of patents with no such notice). Agreements that Germany
signed at the end of
World War I
released such trademarks as "
aspirin" and
"
heroin" into the public domain in many
areas.
Another example would be
Charles
Darwin's
theory of evolution. Being an
abstract idea it has therefore never been patentable. After Darwin
constructed his theory, he did not disclose it for over a decade
(see
Development of
Darwin's theory). He could have kept his manuscript in his desk
drawer forever but once he published the idea, the idea itself
entered public domain. However, the carrier of his ideas, in the
form of a book titled
The
Origin of Species, was covered by copyright (though, since
he died in 1882, the copyright has since expired).
Copyright
In the
past, in some jurisdictions such as the USA, a work
would enter the public domain with respect to copyright if it was
released without a copyright notice. This was true prior to
March 1, 1989 (
according to the USA Copyright office), but is no
longer the case. Any work (of certain, enumerated types) receives
copyright as soon as it is fixed in a tangible medium.
It is commonly believed by non-lawyers that it is impossible to put
a work into the public domain. Although copyright law generally
does not provide any statutory means to "abandon" copyright so that
a work can enter the public domain, this does not mean that it is
impossible or even difficult, only that the law is somewhat
unclear. Congress may not have felt it necessary to codify this
part of the law, because abandoning property (like a tract of land)
to the public domain has traditionally been a matter of common law,
rather than statute. (Alternatively, because copyright has
traditionally been seen as a valuable right, one which required
registration to achieve, it would not have made sense to
contemplate someone abandoning it in 1976 and 1988.)
Statutory law
Computer Software Rental Amendments Act
There are several references to putting copyrighted work into the
public domain. The first reference is actually in a statute passed
by Congress, in the Computer Software Rental Amendments Act of 1990
(Public Law 101–650, 104 Stat. 5089 (1990)). Although most of the
Act was codified into Title 17 of the U.S. Code, there is a very
interesting provision relating to "public domain shareware" which
was not, and is therefore often overlooked.
- Sec. 805. Recordation
of Shareware
- (a) IN GENERAL— The Register of Copyrights is authorized, upon
receipt of any document designated as pertaining to computer
shareware and the fee prescribed by section 708 of title 17, United
States Code, to record the document and return it with a
certificate of recordation.
- (b) MAINTENANCE OF RECORDS; PUBLICATION OF INFORMATION— The
Register of Copyrights is authorized to maintain current, separate
records relating to the recordation of documents under subsection
(a), and to compile and publish at periodic intervals information
relating to such recordations. Such publications shall be offered
for sale to the public at prices based on the cost of reproduction
and distribution.
- (c) DEPOSIT OF COPIES IN LIBRARY OF CONGRESS— In the case of
public domain computer shareware, at the election of the person
recording a document under subsection (a), 2 complete copies of the
best edition (as defined in section 101 of title 17, United States
Code) of the computer shareware as embodied in machine-readable
form may be deposited for the benefit of the Machine-Readable
Collections Reading Room of the Library of Congress.
- (d) REGULATIONS— The Register of Copyrights is authorized to
establish regulations not inconsistent with law for the
administration of the functions of the Register under this section.
All regulations established by the Register are subject to the
approval of the Librarian of Congress.
One
purpose of this legislation appears to be to allow "public domain
shareware" to be filed at the Library of Congress, presumably so that the shareware would be more
widely disseminated. Therefore, one way to release computer
software into the public domain might be to make the filing and pay
the
$20 fee. This could have the effect of "certifying"
that the author intended to release the software into the public
domain. It does not seem that registration is necessary to release
the software into the public domain, because the law does not state
that public domain status is conferred by registration.
Judicial rulings supports this conclusion, see
below.
By comparing paragraph (a) and (c), one can see that Congress
distinguishes "public domain" shareware as a special kind of
shareware. Because this law was passed after the Berne Convention
Implementation Act of 1988, Congress was well aware that
newly-created computer programs (two years worth, since the Berne
Act was passed) would automatically have copyright attached.
Therefore, one reasonable inference is that Congress intended that
authors of shareware would have the power to release their programs
into the public domain. This interpretation is followed by the
Copyright Office in
37
C.F.R. § 201.26.
Berne Convention Implementation Act
The Berne Convention Implementation Act of 1988 states in section
twelve that the Act "does not provide copyright protection for any
work that is in the public domain." The congressional committee
report explains that this means simply that the Act does not apply
retroactively.
Although the only part of the act that does mention "public domain"
does not speak to whether authors have the right to dedicate their
work to the public domain, the remainder of the committee report
does not say that they intended copyright should be an
indestructible form of property. Rather the language speaks to
getting rid of formalities in order to comply with Berne
(non-compliance had become a severe impediment in trade
negotiations) and making registration and marking optional, but
encouraged. A fair reading is that the Berne Act did not intend to
take away author's right to dedicate works to the public domain,
which they had (by default) under the 1976 Act.
Section 203 of the Copyright Act
Although there is support in the statutes for allowing work to be
dedicated to the public domain, there cannot be an unlimited right
to dedicate work to the public domain because of a quirk of U.S.
copyright law which grants the author of a work the right to cancel
"the exclusive or nonexclusive grant of a transfer or license of
copyright or of any right under a copyright" thirty-five years
later, unless the work was originally a
work for hire.
It is unsettled how this section would mesh with a purported public
domain dedication. Any of these interpretations are possible:
- No effect. Any holder of a copyright can release it to the
public domain. This interpretation is probably wrong, because then
an author would lose the right to his "termination right," which in
practical terms means a royalty. To prevent paying the royalty, a
comic book company could release the copyright to the public domain
but hold onto the trademark, which would suffice to prevent
knock-off comics from being made. Because the Captain America case
(Marvel v. Simon) showed that this termination
right cannot be alienated before death, this interpretation is
almost certainly wrong.
- Some effect. An author may release his own work into the public
domain, and a company holding a work for hire may release his work
into the public domain. But a company which has purchased a
copyright from an author (as was the case with most of the "Golden
Age" comic book writers) cannot. Although the distinction of
allowing an author to release his own work is not explicit in the
statute, it may not be literally inconsistent (it is not a
"transfer" or a "license," and it arguably is not a grant of a
right under copyright), and this reading is necessary to
comply with the 1990 Act discussed above, as well as the case law
discussed below.
- Strong effect. Only a company holding a work for hire can
release the work into the public domain. Because of the references
to "shareware" (above) and "programmers" (below), and the fact that
many software companies in the 1980s were quite small (and thus did
not have employees), this reading seems inconsistent with the
intent of Congress.
Case law
Another form of support comes from the seminal case
Computer Associates
Int'l v. Altai, 982
F.2d 693. This case set the standard for determining copyright
infringement of computer software and is still followed today.
Moreover, it was decided by the Second Circuit appellate court,
which is famous for handing down some of the most well-reasoned
American copyright decisions . In this case, it discusses the
public domain.
- (c) Elements Taken from the Public Domain
- Closely related to the non-protectability of scenes a faire, is
material found in the public domain. Such material is free for the
taking and cannot be appropriated by a single author even though it
is included in a copyrighted work. ... We see no reason to make an
exception to this rule for elements of a computer program that have
entered the public domain by virtue of freely accessible program
exchanges and the like. See 3 Nimmer Section 13.03 [F] ; see also
Brown Bag Software, slip op. at 3732 (affirming the district
court’s finding that "[p]laintiffs may not claim copyright
protection of an ... expression that is, if not standard, then
commonplace in the computer software industry."). Thus, a court
must also filter out this material from the allegedly infringed
program before it makes the final inquiry in its substantial similarity analysis.
This decision holds that computer software may enter the public
domain through "freely accessible program exchanges and the like,"
or by becoming "commonplace in the computer industry." Relying only
on this decision, it is unclear whether an author can dedicate his
work to the public domain simply by labeling it as such, or whether
dedication to the public domain requires widespread
dissemination.
This could make a distinction in a
CyberPatrol-like case, where a software program
is released, leading to litigation, and as part of a settlement the
author assigns his copyright. If the author has the power to
release his work into the public domain, there would be no way for
the new owner to stop the circulation of the program. A court may
look on an attempt to abuse the public domain in this way with
disfavor, particularly if the program has not been widely
disseminated. Either way, a fair reading is that an author may
choose to release a computer program to the public domain if he can
arrange for it to become popular and widely disseminated.
Treatise analysis
The treatise cited holds in its most recent edition:
- 13.03[F] [4]
- It is axiomatic that material in the public domain is not
protected by copyright, even when incorporated into a copyrighted
work. ...
- An enormous amount of public domain software exists in the
computer industry, perhaps to a much greater extent than is true of
other fields. Nationwide computer "bulletin boards" permit users to
share and distribute programs. In addition, computer programming
texts may contain examples of actual code that programmers are
encouraged to copy.
- Programmers often will build existing public domain software
into their works. The courts thus must be careful to limit
protection only to those elements of the program that represent the
author's original work.
Although
Computer Associates
only mentioned the issue in passing, Nimmer observes that the
public domain is particularly rich and valuable for computer
programs. He seems to say that a computer program author who wishes
to release his work into the public domain may either include it in
a book as example code or post it on a "bulletin board" and
encourage sharing and distribution. (Nimmer is the treatise most
widely cited in copyright opinions, and is generally
authoritative.)
Patent
With regard to
patents, on the other hand,
public use or publishing the details of an invention before
applying for a patent will generally place an invention in the
public domain and (in theory) prevent its subsequent patenting by
anyone—an effective disclaimer. For example, a chemistry journal
publishing a formula prevents patenting the formula by anyone.
This
tactic was commonly used by Bell Labs
. The famous
Bell Labs Technical Journal was
sent free of charge to the library of the U.S. Patent Office to
establish a base of prior art without the inconvenience, cost, and
hassle of filing patent applications for inventions of no immediate
monetary value. (
Unix was famously described in
this journal.) This is sometimes called "defensive disclosure"—one
way to make sure someone is not later accused of infringing a
patent on their own invention. There is an exception to this rule,
however: in U.S. (not European) law, an inventor may file a patent
claim up to one year after publishing a description (but not, of
course, if someone else published or used it first).
In practice, patent examiners only consider other patents and the
books they have in their library for prior art, largely because the
patent office has an elaborate classification system for
inventions. This means that an increasing number of issued patents
may be invalid, based upon prior art that was not brought to the
examiner's attention. Once a patent is issued, it is very expensive
to invalidate. Publishing a description on a website as a
preemptive disclosure does very little in a practical sense to
release an invention to the public domain; it might still be
considered "patentable", although erroneously. However, anyone
aware of an omitted prior art citation in an issued patent may
submit it to the US Patent Office and request a "reexamination" of
the patent during the enforceable period of the patent (that is,
its life plus statute of limitations). This may result in loss of
some or all of the patent on the invention, or it may backfire and
actually strengthen the claims.
An applicant may also choose to file a
Statutory
Invention Registration, which has the same effect as a patent
for prior art purposes. These SIRs are relatively expensive. These
are used strategically by large companies to prevent competitors
from obtaining a patent.
Section 102(c) says that an invention that has been "abandoned"
cannot be patented. There is precious little case-law on this
point. It is largely a dead letter.
If an inventor has an issued patent, there are several ways to
release it to the public domain (other than simply letting it
expire). First, he can fail to pay the maintenance fee the next
time it is due, about every four years. Alternatively he can file a
terminal disclaimer under 37 CFR 1.321 for a
reasonable fee. The regulations explicitly say that the "patentee
may disclaim or dedicate to the public the entire term, or any
terminal part of the term, of the patent granted. Such disclaimer
is binding upon the grantee and its successors or assigns." Usually
this is used during the application process to prevent another
patent from a "
double patenting"
invalidation. Lastly, he may grant a patent license to the world,
although the issue of revocability may raise its head again.
Trade secret
If guarded properly,
trade secrets are
forever. A business may keep the formula to
Coca-Cola a secret. However, once it is disclosed
to the public, the former secret enters public domain, although an
invention using the former secret may still be patentable in the
United States if it is not barred by statute (including the
on-sale bar).
Some businesses choose to protect products, processes, and
information by guarding them as trade secrets, rather than
patenting them. Hershey Foods, Inc., for example, does not patent
some of its processes, such as the recipe for
Reese's, but rather maintains them as trade secrets,
to prevent competitors from easily duplicating or learning from
their invention disclosures, or from using the information after
the patent lapses.
One risk, however, is that anyone may
reverse engineer a product and thus
discover (and copy and publish) all of its secrets, to the extent
they are not covered by other laws (e.g. contract).
Trademark
A
trademark registration is renewable. If
a trademark owner wishes to do so, he may maintain a registration
indefinitely by paying renewal fees, using the trademark and
defending the registration.
However, a trademark or
brand can become
unenforceable if it becomes the
generic term for a particular type of
product or service—a process called "genericide". If a mark
undergoes genericide, people are using the term generically, not as
a trademark to exclusively identify the particular
source
of the product or service. One famous example is "
thermos" in the United States.
Because trademarks are registered with governments, some countries
or trademark registries may recognize a mark, while others may have
determined that it is generic and not allowable as a trademark in
that registry. For example, the drug "acetylsalicylic acid"
(2-acetoxybenzoic acid) is better known as
aspirin in the United States—a generic term. In
Canada, however, "aspirin" is still a trademark of the German
company
Bayer. Bayer lost the trademark after
World War I, when the mark was sold to
an American firm. So many copy-cat products entered the
marketplace during the war that it was deemed
generic just three years later.
Terms can be deemed "generic" in two ways. First, any potential
mark can be deemed "generic" by a trademark registry, that refuses
to register it. In this instance, the term has no secondary meaning
that helps consumers identify the source of the product; the term
serves no function as a "mark". Second, a mark, already in use, may
be deemed generic by a court or registry after the mark is
challenged as generic—this is known as "genericide". In this
instance, the term previously had a secondary meaning, but lost its
source-identifying function.
To avoid "genericide", a trademark owner must balance between
trying to dominate the market, and dominating their market to such
an extent that their product name
defines the market. A
manufacturer who invents an amazing breakthrough product which
cannot be succinctly described in plain English (for example, a
vacuum-insulated drinking flask) will likely find its product
described by the trademark ("Thermos"). If the product continues to
dominate the market, eventually the trademark will become generic
("thermos").
However, "genericide" is not an inevitable process. In the late
1980s, "
Nintendo" was becoming synonymous
with home video game consoles but Nintendo was able to reverse this
process through marketing campaigns.
Xerox was
also successful in avoiding its name becoming synonymous with the
act of photocopying (although, in some languages (such as Russian
and Polish) and countries (like India and Brazil), it became
generic).
Trademarks currently thought to be in danger of being generic
include
iPod,
Jell-O,
Band-Aid,
Rollerblade,
Google,
Spam,
Hoover, and
Sheetrock. Google vigorously defends its trademark
rights. Although
Hormel resigned itself to
genericide, it has fought attempts by other companies to register
"spam" as a trademark in relation to computer products.
When a trademark becomes generic, it is as if the mark were in the
public domain.
Trademarks which have been genericized in particular places
include:
Formica,
Escalator,
Trampoline,
Raisin Bran,
Linoleum,
Dry Ice,
Shredded Wheat (generic in US),
Mimeograph,
Yo-Yo,
Kerosene,
Cornflakes,
Cube Steak,
Lanolin, and
High Octane,
(Source: Xerox ad, reprinted in
Copyright, Patent, Trademark,
..., by Paul Goldstein, 5th ed., p. 245) as well as
Aspirin (generic in the United States, but
not in Canada),
Allen wrench,
Beaver Board,
Masonite,
Coke,
Pablum,
Styrofoam,
Heroin,
Bikini,
Chyron,
Crapper,
Weedwhacker,
Kleenex,
Linux (generic in Australia) and
Zipper.
Domain name
A
domain name never enters public domain
in the sense that copyrighted material does. It is closer in nature
to a trademark, in that a failure to maintain it makes it available
for others to use (with different standards to maintain it from
those for a trademark). If another party registers a lapsed domain
name, it is no longer available to the public, as would be the case
with former intellectual property which has become public
domain.
See also
References
Notes
- Kevin Kelly. Scan this Book!, New York Times, 14
May 2006.
- Patentability of Mathematical Algorithms under US
Manual of Patent Examining Procedure
- USPTO Notice of Public Hearings and Request for
Comments on Patent Protection for Software-Related Inventions
1994
- Copyright Office Basics: Publications Incorporating U.S.
Government Works
-
http://en.wikisource.org/wiki/Veeck_v._Southern_Building_Code_Congress_Int'l,_Inc./Opinion_of_the_Court
- Nimmer,
Melville B., and David Nimmer (1997). Nimmer on
Copyright, section 13.03(F)(4). Albany: Matthew Bender.
- Testimony of Dorothy Schrader, general counsel of the U.S.
copyright office, hearing for House Resolution 1623, serial
100/50.
- Subject matter and scope of copyright
- http://www.copyright.cornell.edu/public_domain/
- Duration of Copyright
- Copyright Notice, U.S. Copyright Office Circular
3, 2008.
- U.S. Copyright Office, Circular 15a, Duration of Copyright: Provisions of the Law Dealing with
the Length of Copyright Protection.
- Stephen Fishman, The Public Domain, 4th ed., Nolo,
2008, p. 383–384. ISBN 9781413308587.
- Sound Recordings Act of 1971.
- An exception to the 1976 Copyright Act's general abolition of
common law copyright. June M. Besek, " Copyright Issues Relevant to Digital Preservation and
Dissemination of Pre-1972 Commercial Sound Recordings by Libraries
and Archives", CLIR Reports, December 2005.
- Non-U.S. sound recordings fixed before February 15, 1972 are
covered under U.S. copyright (for the normal durations) if the
country of origin shares an international copyright agreement with
the United States, and the work was not published in the U.S.
within 30 days of its first publication. Robert Clarida, " Who Owns Pre-1972 Sound Recordings?", The
Intellectual Property Strategist, November 13, 2000.
- Preemption with respect to other laws
- Sound recordings fixed between February 15, 1972, and December
31, 1972, but not published or registered before 2003, whose
authors, not working for hire, died in 1972.
- Sound recordings fixed on or after February 15, 1972, and first
published 1978–2002, whose authors, not working for hire, died
before 1978. § 303. Duration of copyright: Works created but not
published or copyrighted before January 1, 1978, Copyright
Law of the United States of America and Related Laws Contained in
Title 17 of the United States Code, U.S. Copyright Office
Circular 92.
- Public Law 92-140 (October 15, 1971).
- § 405. Notice of copyright: Omission of notice on
certain copies and phonorecords, Copyright Law of the
United States of America and Related Laws Contained in Title 17 of
the United States Code (U.S. Copyright Office Circular
92).
- Copyright Notice, U.S. Copyright Office Circular
3, 2008, p. 1.
- [1]
-
พระราชบัญญัติลิขสิทธิ์ พ.ศ. ๒๕๓๗. Copyright Act of B.E. 2537
(1994 A.D.), from Wikisource, in Thai. Section 4 governs copyright expiration
terms
-
พระราชบัญญัติลิขสิทธิ์ พ.ศ. ๒๕๓๗. Copyright Act of B.E. 2537
(1994 A.D.), from Wikisource, in Thai. Section 4, Article 22 states the
copyright term for applied art works
-
พระราชบัญญัติลิขสิทธิ์ พ.ศ. ๒๕๓๗. Copyright Act of B.E. 2537
(1994 A.D.), from Wikisource, in Thai. Article 7 governs works not
copyrightable. The law refers specifically to Thai state rules,
regulations, announcements, orders, explanations, and
correspondence, and includes the constitution, laws, court
decisions, examinations, and reports.
-
พระราชบัญญัติลิขสิทธิ์ พ.ศ. ๒๕๓๗. Copyright Act of B.E. 2537
(1994 A.D.), from Wikisource, in Thai. Article 14 states that any government
office receives a copyright on creative works produced by it or
produced for it under contract, unless other arrangements regarding
copyright have been previously agreed to by those involved.
- James Bates, "Company Town Yule With Less 'Wonderful Life'?
Tune In", Los Angeles Times, November 23, 1993,
p. D4.
- Film Superlist: Motion Pictures in the US Public
Domain. Created by Walter E. Hurst; updated edition by D.
Richard Baer. Hollywood Film Archive, 1992–94.
- George Romero talks about Land of the
Dead, About.com, June 21, 2005.
- " Omission of notice", Copyright Notice,
US Copyright Office Circular 3, January 2008.
- Nimmer, Melville B., and David Nimmer (1997). Nimmer on
Copyright. Albany: Matthew Bender.
- Aspirin, World of Molecules
- SPAM and the Internet (Waybacked)
Sources
- Fishman, Stephen, The Public Domain: How to Find & Use
Copyright-Free Writings, Music, Art & More. ISBN
0-87337-433-9
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