Re: Public Domain

On Stephen J. Hyland <shyland[_at_]computer-lawyer.com> wrote:
>
> Bob Stock <bstock[_at_]ucla.edu> wrote:
> >
> > How does one place something in the public domain? Is putting a
> > notice on the work saying it can be freely copied enough? Is a
> > waiver of all the other rights (distribution, etc.) implied by
> > such a notice? Is such a waiver irrevocable? Does it matter what
> > the language of the notice is? Does the author retain any rights
> > with such a waiver? It seems to me there is an important public
> > policy served by placing something in the public domain, and, yet,
> > it's not clear to me whether it's easily done.
>
> You and I have had this discussion before. I've contended that there
> are only two ways a work can now go into the public domain in the U.S.
> (1) the work is created by the government (or as a work for hire for
> the government) and (2) upon expiration of the copyright term. Because
> copyright now attaches at fixation and the statute doesn't provide any
> specific way of placing a work in the public domain other than the
> above, the effect of language that says "This work is in public domain"
> is to grant an unlimited license to use the work.

Because a copyright arises automatically upon creation, Mr. Hyland may be correct that the best one can do is give everyone an unlimited license to use the work. But courts have held (or at least suggested in dicta) that abandonment is a defense to copyright infringement. Abandonment requires an overt act by the copyright owner evidencing his or her intent to abandon any copyright in his or her work. So it seems to me that even without any statutory support, a court would be justified in holding that an author had abandoned his or her copyright, thereby placing the work in the public domain.

What works in theory, however, doesn't always work in practice. There are, as Bob suggests, some difficult practical problems. At the very least, the language would have to be very clear and unequivocal. But the more difficult issue, it seems to me, is irrevocability. If the author later made it clear that he or she wished to reassert copyright in the work, would the court let him or her do it? Undoubtedly, people who had relied upon the earlier abandonment would receive some protection, but would the court really let future copying continue unabated? If not, then it really isn't possible to place something in the public domain. And while I can see a court relying upon the abandonment argument to protect a reliance party, most courts also have an instinct against misappropriation, so I imagine they would also stretch to find the abandonment revocable. But, as with most questions of U.S. law, there is at least a respectable argument to the contrary.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Tue Mar 17 1998 - 02:48:03 GMT