“It was posted to the Internet so it’s in the public domain!”
For those who know copyright and understand how the law works this phrase has likely caused more headaches and facepalms than just about any other. Even most people who aren’t very knowledgeable about copyright know that copyright affixes to a work upon its creation and that it is automatic (at least in recent decades) with no symbol, notice or registration required.
But before we dismiss these people as bing daft and foolish for not knowing the laws of their industry, we have to acknowledge that the confusion is actually somewhat understandable. With copyright “public domain” means something very different than it does to a layperson. That makes it so that, when one hears that they are free to copy and reuse anything that’s in the “public domain” they often have the wrong definition of the term and that, in turn, leads to trouble.
But is there a way we can prevent this confusion or at least lessen it? It would be difficult without throwing out a legal term with hundreds of years of significance, but there might be other ways to get around the issue.
Public Domain vs. Public Domain
In copyright, public domain simply means that the work lacks copyright protection. Whether it didn’t qualify for it, such as works created by the Federal government. However, to most lay people the “public domain merely means being “in the public sphere” or “made available to the public”.
With that second definition, it’s easy to see how others might conclude everything on the Web is in the “public domain” because it is in one of the two, just not the one that matters legally.
To be clear, “Public Domain” isn’t the only word with a different definition when used by laypeople. “Theft”, for example, is used much more broadly than the legal definition, which deals only with physical property and money. Also, many people use the word “Assault” when they really mean “Battery” as assault has become a catch-all for being attacked though that’s not the legal definition.
However, normally these distinctions don’t cause someone to get into trouble as the confusion is more semantic than anything. Here, the mistake leads to people believing that a wide swath of works are available for reuse when they are very much under copyright. In short, the layperson definition is almost the opposite of the legal one.
This, in turn, is how teens wind up on the cover of porn DVDs and magazines wind up pilfering articles.
WHile the problem is easy to understand, fixing it is a much larger challenge.
Fixing the Problem
First, the good news: In my experience, though I have no data to back this up, the problem seems with those much older than 40, which is definitely true in the case of the Lara Jade dispute though unconfirmed in the Cooks’ Source case.
This could be because the term “public domain” to mean “in the public” is somewhat archaic to younger people or it could simply be that those born later have had more exposure to the legal definition from an earlier age. While some still confuse the two at any age, it seems to be a bigger problem the higher the age goes.
Also, it is likely that those who have been born more recently have never lived in a copyright climate where things lapse into the (legal) public domain. Those born since 1978 have, with only a few exceptions, never had a work made in their lifetime lapse into the public domain as formality requirements were removed in the Copyright Act of 1976.
Despite all of this, the mistake does happen and explaining the difference between the two definitions of “Public Domain” can be a tedious, losing battle.
Even turning the conversation to ethics doesn’t always work. “Would you want your (attributed) article reprinted without permission or payment in a magazine?” is an ethical question that would likely split a room full of people. Some would be thrilled, others much less so. However, the law is pretty clear.
One approach is to just drop the term “Public Domain” from conversation and use “Copyright Protected” and “Not Copyright Protected” or some variation. However, that would require throwing out the term “Public Domain”, which can be traced back to the mid-19th century.
The problem isn’t the age of the term or how rarely it’s used, it’s the lack of familiarity with it and that, in turn, is caused by the lack of familiarity with copyright law at large. THat’s slowly changing thanks to the copyright issues the Web has raised, but the problem is far from over.
In the end though, copyright education is by far the best tool for defeating this confusion and it does seem to be having an impact, at least until the next Cooks Source case comes along
One thing I’ve noticed over the six years I’ve run Plagiarism Today is that, for the most part, people are getting smarter about copyright. Though most online discussion about the issue are still littered with some who don’t understand the law, most understand at least the basics correctly and those who are more knowledgeable are listened to. This isn’t true every time, and much of it depends on the community you are looking at, but it seems to be an overall truth.
Hopefully this trend can continue and these types of mistakes will be less and less common. It may be wishful thinking, but I’m reasonably optimistic that if we can reach a widespread understanding of copyright, we can start working out how we want it to look and what we want it to do.