Working Groups/publicdomain/pdw/law/guide

= All About Copyright and the Public Domain =

''This page is a work in progress, it may contain errors. It is not intended as nor should it be taken as legal advice.''

Introduction to Copyright and the Public Domain
Copyright is one form of intellectual property (IP), which are the laws that regulate the products of our minds. In particular, copyright's job is to encourage the production of creative works. In practice, copyright stimulates cultural production by granting a monopoly over various uses of your works, such as copying, performing or making available to the public. This monopoly gives the rights holder exclusive control over the market in their works. Their rights last for a given period of time, intended to be sufficient to recover the creative and economic investment. This duration varies according to the 'subject matter' in question, for example sound recordings, literary compositions or films.

Once a work of art, literature, music or design is 'fixed' (i.e. leaves the creator's mind and assumes a physical form), copyright attaches automatically to the work. Protection typically lasts for many decades, but once the term of copyright finishes that work enters the public domain (PD) where it can be freely copied and reused without the legal restrictions relevant to copyright material.

For a deeper understanding of copyright the wikipedia has many useful articles.

Recommend anything more academic?

What is the Public Domain?
This term refers to intellectual works that can be copied, used and reused free of legal restriction. Think of them as intellectual creations that are, for whatever reason, not protected by intellectual property laws - and because they are not subject to the exclusive control of IP laws, its a creative / cultural free for all!

The public domain includes works in which exclusive rights have expired, for example Shakespeare's plays or Puccini's operas. It also contains material and ideas that never qualified for protection, such as ideas, for example the theory of relativity or the abstract plot of a romantic novel. The public domain consists of almost all humanity's intellectual output up to the very recent present. For copyrighted works, only those created in the last 100 years or so are covered by exclusive rights.

The public domain is our most vital source of creativity
The 'Romantic' notion of the artist - think of the struggling author sweating out a novel word-by-word - is today in part discredited. Creativity is in part a matter of internal contemplation, but crucially this process depends on influences, inspirations and the cultural resources that feed artist's imagination. From this modern conception of creativity, the importance of a healthy public domain becomes clear because access to cultural and informational resources enable a dialogue with our collective past.

Calculating Copyright Status - Examples
Our Public Domain Works tool was designed to encourage reuse of public domain materials by automagically calculating the copyright status of a track. If the track is public domain then you are free to reuse as you jolly well like - without asking permission from anyone. If its protected, then you should identify the rights holder and ask permission before you reuse.

Let's say you want to use, sample or reissue a particular track, whether its Elvis, Elgar or Elmore Judd. Unfortunately, using even a fraction of a copyright-protected track (without the express permission of the rightsholder) leaves you liable for copyright infringement. At the very least, rights holders can restrain distribution of further copies of the infringing work, or they could sue you for damages. So before reusing tracks in your documentary or mixtape, its best to be aware of the copyright status of the different works embodied in your chosen track. Then, if necessary, seek permission to use the works. If however the track is public domain, you are free to use it without formalities.

(These first two paragraphs feel more general so should go on an intro page)

This page explains the basis of PDWorks' calculations.

The law says a track comprises two different copyright works, a song (musical work) and a sound recording. To freely use the work, without permission, you should be clear that the rights in both these works have expired. Its not enough that either the song or the recording alone are unprotected. Repeat: a track is not public domain (i.e. free to use) until the duration of protection for both copyright elements - the recording and the song - has ended.

''MH note: what about producer / performer rights? i don't know much / enough about how these intersect. If no-one else can inform, i'll go check-up''

Calculating the term of protection for sound recordings
The sound recording element of a track is protected by copyright for 50 years from the end of the year the recording was first published. If your track has been in circulation for less than 50 years, the sound recordings will be protected. If your track was published more than 50 years ago, the sound recording will be public domain.

As noted above, because the underlying authorial composition - the song or musical work - attracts its own, separate copyrights, even if a sound recording is unprotected there may still be protected elements in the track that restrict your use. Repeat: its not enough for the recording to be public domain. To reuse a track without attracting lawyer's letters, the song and the recording must both be unprotected or public domain.

Calculating the term of protection for musical works
Musical works are protected for the life of the author plus 70 years. In other words, songs enter the public domain (and copyrights expire in the work) 70 years after the composer's death. If a song's composer is still alive, then the song is protected. If the composer died less than 70 years ago, then rights in the work persist. In both these scenarios you need permission to reuse. In neither of these scenarios can the track be properly called public domain, even if the rights in the sound recording have expired (see above). If however the composer died more than 70 years ago, the rights will have expired so the work is public domain and - depending on the status of the recording - you may be free to reuse.

Example 1 Protected recording and composition > seek permission before reuse
I am a documentary film-maker and want to use in a film Blur's track 'Out of Time' - which appeared on a 2003 album 'Think Tank'. Copyright in the sound recording extends for 50 years from the end of the year in which the music was first published, so will not expire until the end of 2053. In addition the song was written by a still-living composer, Damon Albarn, so rights in the music will continue for at least another 70 years. This track is most definitely not public domain. To stay within the law, I should go ask the rights holders' permission before continuing.

Example 2 - One or other of the song or recording is protected > Seek permission before reuse
I am a documentary film-maker and want to use a version of Round About Midnight recorded by the Miles David Quintet for Prestige Recordings in 1956. Copyright in the sound recording extends for 50 years from the end of the year in which the music was first published, so expired at the end of 2006. However, the musical work was composed by Thelonius Monk, who died in 1982. His rights will then continue until 2052. Although the recording is in the public domain, the composition is protected. I should - to stay within the law - go ask the rights holders before continuing.

Example 3 - Both the song and the recording are unprotected > Free to reuse
I am a documentary film-maker and want to use 'Blind' Lemon Jefferson's 1927 recording of 'Matchbox Blues'. On the 50-year rule, the recording is well out and copyright and into the public domain. And on the life-plus-70-year rule, given the songwriter died in 1929, the composition is also in the public domain. I am free to use this track as i see fit.

Copyright, the Public Domain and recorded music
''Disclaimer: This document targets copyright for musical recordings. Other kinds of work may have different restrictions, for example copyright on typographic arrangements only lasts for twenty years.''

Kinds Of Copyrights in recorded music
Musical recordings involve at least two different subject matters. First the song, which is the music and lyrics in their written form, attracts one set of copyrights. Often this copyright will be "joint" or shared between multiple composers (e.g. Beatles songs are Lennon/McCartney). This is also known as the 'score', and is usually marked ©.

In addition, the sound recording - a particular version of that song as set down onto a master, regardless of the production format (e.g. vinyl, CD, cassette or MP3) - has another copyright. This is usually owned by whoever produced or paid for the recording, such as a record company or recording artist. The copyright in the recording is usually marked (P).

The Duration of Copyright
Copyright in the score / song extends for seventy years after the death of the copyright holder (the author or composer). In the case of joint copyrights, the term of protection lasts until seventy years after the death of the last surviving author.

Copyright in sound recordings lasts fifty years from the date the recording was made, regardless of whether the recording copyright is owned by an individual or a company. In some countries the recording copyright lasts longer, often seventy years.

Gotchas
Gotchas are unexpected problems. In this context, gotchas often relate to derivative works, which is a novel work based on an older work but qualifying for new protection.

Remastering
Does remastering a recording gain a new copyright? See FAQ

Digitisation
Does uncompressed digitisation gain a new copyright? What about digital recordings compressed or encoded with a codec such as MP3?

Arrangements
If a traditional song is given a new arrangement, this is presumably a derivative work. Is it? How different does a work have to be to be an original arrangement?

International Public Domain Works
If it's PD in the US/Germany/Wherever, is it PD here? How about if it's PD here but I can only get a US/German/Wherever version?

Others
Others?

Dedicating Work To The Public Domain
Some American projects declare new work to be in the public domain, before its copyright would normally expire.

''MH: This method would not be valid in the UK, because a licence must be granted to a person and the PD does not have personality. Of course, we in the UK could grant a licence to the whole world, but the same practical effect is achieved by not enforcing infringements on your works. In much the same way, works produced by US projects that are dedicated to the public domain can be used freely in the UK because there producers will not object to subsequent reuse.''

Moral Rights Interaction
If I waive my copyright (dedicate a work to the public domain), how does this affect my moral rights? Are moral rights based on copyright, or are they separate? If they are separate it would mean that there could be works that have no copyright but that the author can assert moral rights over.