Hello, friends.
Welcome to this week's edition
of the hourly to exit podcast.
Also happy holidays,
as this is my last
solo episode of 2023.
And I am excited to close
out the year with the third
part of my three part series
about copyright ability.
So copyright ability simply
means that an asset is.
Capable of protection
qualifies for
protection under the U.
S.
Copyright laws.
Part one of this series
provided an overview
of the main requirement
for copyrightability,
and that is that the
asset must be original.
Original simply means not
copied from another source.
That it was Independently
created note that
original does not mean
innovative or novel.
It doesn't have to be the
most mind blowingly new idea.
The asset can be about
something that's a kind of
tried and true idea, but the
expression, the words that you
use to describe your take on
that idea must be original.
In part two, I dove a bit.
deeper into the originality
requirement by talking
about derivative works.
And it also included a brief
detour into fair use because
it's almost impossible to talk
about derivative works without
talking about fair use.
In part two, I answered
the question, what makes
something truly original
versus derivative?
So can find part
one in episode 71.
And part two in episode 72
this week, I answer this
question that I received
at a recent workshop.
How do we define the
public domain is posting
it to social media.
Consider the public domain.
The answer to this belongs
in the copyright ability
series, because an asset
that is in the public
domain is not protected by
intellectual property laws.
Therefore it's
not copyrightable.
And so public domain.
Concept does apply to not
just copyrights, but also to
trademarks and the patents.
But, of course, we're talking
about trademarks here, but
I just wanted to make the
comment that public domain
does apply to other areas
of intellectual property
laws on the patent side.
I'm sure you're familiar with
drugs that become generic and
that means they passed into
public domain and the patent
no longer applies to it.
When a work is in the
public domain, it is freely
available for anyone to
use, modify, and distribute
without needing permission
from the original creator,
or paying royalties for it.
So recall that the exclusive
rights held by a copyright
owner Are the rights to
use it, reproduce it,
distribute it, modify it,
perform it, display it.
And when it's in the public
domain, now those rights that
are usually exclusively held
by the copyright owner can
be exercised by the public.
How does a work enter
the public domain?
Well, there are a number
of ways it can happen.
1st, it may be just
the expiration of the
protection period in the U.
S.
copyright protection expires
after a certain period.
And that period depends
upon who created it.
I'll talk a little bit
about it, but not all
the intricacies of it.
So, once the copyright.
Expires the work enters
the public domain.
So here in the U.
S.
January 1st of every year
is public domain day.
And on the January
1st, a new crop works
will enter the public
domain January 1 of 2023
copyrighted works from 1997.
entered the public domain.
January 1, 2024, copyrighted
works from 19, 29 will enter
the public domain and so on.
Of course, the ones that
were already in the public
domain remain in the public
domain, but a new class of
works enter the public domain
every year as the passage
of time occurs and the
protection period expires.
So, for instance, among the
works that enter the public
domain in 2023 are works by
Ernest Hemingway, Virginia
Wolf, and Agatha Christie,
which is pretty interesting.
I think if you're interested,
you can Google that and
see the number, what
works are coming into the
public domain every year.
So that means that, you
know, you can write a.
sequel to 1 of those works,
you can use the characters and
put them in new circumstances.
you can create a play or a
movie based on those works
without requiring permission
from the, originator.
there are a number of nuances
to works published before
1978, because things have
changed a lot in the last 100
years about the protection
period and how that is
calculated and what causes it
to go in the public domain.
But for works published
or registered.
from 1978 onwards, the
copyright term is the
life of the author plus
70 years, which is pretty
long and for works with
corporate for, like,
something like a software
company, create software.
It's not based on the human
who created it, but based
on the corporation that owns
it, the term is either 95
years from publication or
120 years from creation,
whichever is shorter for
anonymous pseudonymous or
works for higher the term
is 95 years from the 1st
publication or 120 years from
the year of creation as well.
All right, so the other way,
some works are simply not
eligible for cover protection.
As I have addressed in my
other places in the copyright
ability, series works that
are never eligible for
copyright protection, such as
facts, ideas and systems are
always in the public domain.
Works that consist entirely of
commonly known information or
self evident facts containing
no original authorship, such
as standard calendars or
directory of members, while
the facts and names might be
copyrightable under certain
circumstances, typically.
They are not copyrightable,
and therefore in the public
domain, only the unique
expression or presentation
of that information
would be copyrightable.
For instance, the raw data
or facts in a research
paper can't be copyrighted,
but the way they are
presented, analyzed
or articulated can be.
Another group of, public
domain works government
works any work created by an
officer or employee of the U.
S.
government as part of
their official duties
is automatically in
the public domain.
Now that this.
Exception does not apply
to work created by state
government employees.
So don't assume something that
is created by state government
is in the public domain.
But if it is created by the U.
S.
government, or its employees,
of course, that would be
public domain works failure
to meet copyright formalities.
Now, this was
more of an issue.
prior to 1989, the copyright
notice with C with the date
on it, a date was required
for all works published
in order for the copyright
protection to apply.
People ask about that
requirement to put the
copyright notice on there.
That isn't since 1989.
It's no longer required,
but prior to 1989,
It was required.
And so if the notice was
admitted, or somehow there was
a mistake made with respect
to that copyright notice,
generally, there are some
exceptions, but generally,
that work lost copyright
protection, and therefore
passed into the public domain.
And then you can have
explicit dedication,
a creator can choose.
To relinquish their
copyrights and place their
work in the public domain.
there are some tools
like Creative Commons
Zero, that can do that.
I will talk briefly about
Creative Commons as well.
Creative Commons are
copyright licenses.
Except they're simple,
standardized licenses that
have preset conditions and you
can simply apply those preset
conditions to your work.
If you want to find
out more about them,
go to creative commons.
org.
But basically creative common
licenses can be restrictive.
From, requirements
to give credit to the
creator, you can't use it
for any commercial use.
I mean, you can't sell it and
you can't make any derivatives
or adaptations of it, but
you can use it as is, giving
credit, not selling it.
Versus a pretty permissive
license, which is simply that
you just have to give credit
and that's all you need to do.
And then there are other
licenses that fall between
the 2 give credit, but you
can use commercially, you
can make derivatives, but
you have to give, you know,
all those combinations.
Right?
A creative comments
0, although it's.
Sometimes referred
to as a license.
It's not a license, right?
Because it's a dedication
to the public domain.
if you elect the creative
common 0, then you are
waiving all copyright and
related rights in the work.
So.
might use this if they want
to dedicate their work to
the public domain because
it's, data or educational
content, scientific work,
maybe even artwork, but
something where they want
to facilitate the free
distribution and utilization
of that resource globally.
That is a more, the
merrier, the wider spread.
And repeated that
information is the better
it is for, the world.
And so people may elect
to dedicate their work
to the public domain.
the main attributions
are, there are no
copyright restrictions.
When you have that creative
domains, zero dedication,
you can use the work
for any purpose without
seeking permission, even
commercial purposes.
You can take something that
someone's given away free
and slap a price on it.
If someone will pay
for it and they wait.
So the creator waves
all rights to work.
No attribution is required.
that's a different thing
than pretending it's your
own idea, but it is not a
copyright infringement to
not provide attribution.
there are, other ethical
obligations that you still
have, to not claim somebody
else's, uh, Work as your own
and you can use it worldwide
and it cannot be revoked
when someone dedicates
their work to the public
domain that is permanent
and it cannot be revoked.
However, it is provided as
is, without any warranty.
So, in the event that work.
infringes somebody else's
copyright, because it's been
dedicated to public domain.
It could be that, there are
problems within that work.
so using that, creative
commons zero work is
not completely without
liability or risk.
Here's what public
domain is not.
So to answer the original
question, something that
is publicly available
doesn't mean it's in
the public domain.
Publicly available and public
domain are not synonymous.
Publicly available simply
means it is not being,
held in confidence.
It is something that is
available to the public.
So think of a course.
Or a movie or a song publicly
available, but copyright
protection remains on that
work, according to the
things we just talked about.
So, the question about
publishing something
on my social media
does not put something
in the public domain.
It is publicly available,
but it is still subject to
my copyright protections.
The other thing that public
domain isn't, it isn't.
Free now, it might be, but
if you go on Amazon right now
and search for a tale of 2
cities, you'll see copies of
the book that are for sale.
Right?
So, when we talked
about some of the books.
You know, Virginia Woolf
and Ernest Hemingway.
I can't remember
Agatha Christie books.
You will find those books.
Now, by the way, their
whole catalog of books
is not in public domain.
The ones that they published
before 1927 are, so
you will find all those
books on Amazon for sale.
So you can't.
get the Kindle copy that
you bought and just copy it
and then start selling it.
that particular book.
Is for sale and subject
to whatever the terms of
that sale are, conversely,
something that is free.
Is not necessarily
in the public domain.
Think about most of the
content that you come
across daily on your phone.
It's free, but the
vast majority of it is
protected by copyright.
So that is super important
because too many people
think that's something
that's Published on the
internet is public domain.
That is not what that is.
And it is not just because
you can access it for
free does not mean that it
is in the public domain.
It is still protected
by copyright.
People ask me about
open source software.
So free and open software
is not in the public domain.
It is still protected
by copyright law.
So similar to those
creative common licenses.
If you offer something,
as open source software,
the copyright owner of
that software chooses
to grant specific rights
to the public through a
general public license.
just because it's
free and it's, not
in the public domain.
So there are still
conditions for using it.
It is still protected,
but subject to this public
license that allows you to
use it in specific ways.
And so whatever those terms
of that license are, you
still need to comply with it.
So if you don't comply with
that, the terms of that free
open source license, then you
are infringing the copyright.
It is still protected
by copyright law.
You still need to comply with
the terms of that license.
And if you don't,
then you are guilty of
copyright infringement.
Other people will ask,
why we do even have a
domain, like, why doesn't
protection last longer?
And, if you follow what
has happened over the
last 100 years with the.
Increase in the length
of copyright protection
in particular, there are
many people who think
it lasts way too long.
So, now, with the life of the
author, plus was it 70 years
or 95 years, basically the
value to the original owner.
Has probably, 0 to 9, right?
However, the value to
the world, because at
the end of the day, there
really aren't that many
original ideas anymore.
Right.
And so to be able to
build upon Shakespeare
to be able to build upon.
the odyssey to be able
to build upon, other,
classic materials.
That is the basis of so
much of what is, rich
in current culture.
Public domain is
intentionally created.
It was intentionally created
by Congress to make sure
that some works, even
creative works, there's a
balance for that exclusive
period of time that the.
Creator has exclusive rights
to it, but also to balance
it with the greater good
that we can have this body
of work that we can continue
to develop and to grow from.
I discovered in researching
this when I discovered the
Center for the Study of
Public Domain, which is
awesome, which advocates
for a balance between
protection and public domain.
And they had this to say.
Without the public
domain, there would be
little to protect with
intellectual property rights.
If copyright lasted
long enough to lock
up Shakespeare's work,
much of the literary
canon would vanish.
If data, theories, and formula
were subject to intellectual
property protection,
then scientific progress
would grind to a halt.
So the intellectual
property system needs to
provide both incentives.
Through exclusive rights and
the freedoms provided by the
public domain, and the key
is to find the appropriate
balance between them.
And I think that is a
great way to wrap up the
copyright ability series.
Again, please check out the
last 2 episodes as well as I
also had a 3 part series about
Copyright infringement or
talk about what is copyright
infringement, how to avoid
being a copyright infringer,
which usually happens by
accident, not with intent
and measures you can take
to, reduce the likelihood
that you will be a victim
of copyright infringement.
So please check out
those episodes as well.
And thank you again.
This series has been
sponsored by Think Beyond IP.
Think Beyond IP helps B2B
experts with corporate clients
lay the intellectual property
foundation required to build
new scalable revenue streams.
Think Beyond IP has the legal
expertise and the corporate
experience to provide
expert focus to the issues
that matter most to you.
and to your corporate clients.
And if you haven't already
head over to thinkbeyondip.
com to get your free
assessment to answer
the question, is your
expertise copyrightable?
Thanks guys.
Have a great holiday.