Duhaime's Law Dictionary


Public Domain Definition:

Property that is available or accessible to the public.

Related Terms: Trade Secret, Patent, Public Domain Citation

Historically, public domain was limited to describe, in law, land owned by government. For example, in St. Catharine's, the court equated public domain to mean land owned by the Crown; i.e. the government.

In St. Catharine, Justice Ritchie wrote (brackets added):

".... all ungranted lands (in the province of Ontario) belong to the Crown as part of the public domain...."

In Re Rockliffe, public domain was taken to mean public property.

In Ontario v Fatehi, Justice Estey noted the:

" ... reference to public domain in copyright law as indicating intellectual works, the titles of which are not subject to individual ownership in either subject or Crown."

Intellectual property rights are a creation of statute and do not exist at common law. There is no legal protection of new works, be it in copyright or patent but for statute. Copyright and patent run from creation to their expiry date, set by statute. This protection is time-limited and when it expires, the creation they protected falls into the public domain.

Public domain is an entrenched doctrine of intellectual property law and refers to intellectual property works, such as inventions, writings, recordings or photographs, which have no patent or copyright intellectual property protection. Thus, public domain materials are not protected by intellectual property law. Legal ownership belongs to the public at-large; and not to any individual person. In the result, anyone can use a public domain work without obtaining permission, but no one can ever own it.

However, a collection of public domain works may, as a collection, be subject to intellectual property as a new and novel work. This is especially true for websites, many of which simply collect, gather and reproduce public domain information and yet the new collection is itself protected by copyright even though the raw material is not.

Intellectual property is perhaps an oxymoron in terms of a discussion of public domain as by definition, for inventions or, writing, photographs or recordings in the public domain, no property rights can be asserted by any one person. Such things are said to be in the free for all to use without permission.

Examples include copyright works that were originally non-copyrightable (items that by their very nature are not eligible for copyright such as ideas, facts or names), copyright that has been lost or expired, where copyright is owned or authored by the federal government (federal documents and publications are not copyrighted and so are public domain), and those works which have been specifically granted to the public domain.

In terms of patents, the disclosure of patent information may prevent the registration of the patent as once the invention is in the public domain, it may no longer be registrable.

Some jurisdictions make it clear that works of the government are in the public domain as a rule of law; and that the assertion of a copyright on a government work would be an exception.

But in other jurisdictions, the government asserts copyright and the recognition and especially enforcement of an alleged government copyright in works produced by a publicly-funded government, is a controversial and hotly-debated topic. In Canada, works prepared by the government are held back from the public domain until copyright expires, as §12 of the 2009 version of the Copyright Act  clearly implies government copyright:

"... where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year."

Some law professors, such as Ottawa University's Michael Geist, have built their careers on public criticism of Crown copyright and the idea that all publicly funded content be in the public domain, an idea very popular on the Internet. To many like him, not only is it appropriate that government agencies' materials be in the public domain as of creation, but also those of universities as well (as they too are publicly funded).

French: domaine public.

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