Copyright does not last forever. The main purpose of copyright law is to allow creators of works to be reasonably rewarded for their creative efforts. Works can be in the public domain because the work was not eligible for copyright protection in the first place, the copyright owner has forfeited copyright in the work to the public or the term of protection has expired. Here is a brief guide to understanding and using public domain works.
- What is the public domain? What works are considered part of the public domain?
- How do I know if a work is part of the public domain?
- How can I find works that are part of the public domain?
Q: What is the public domain? What works are considered part of the public domain?
A: The public domain refers to the collection of works that are not protected by copyright, and may be used free of charge and without the permission of the creator or rights holder. Works of all media (books, images, audio-video recordings, etc.) are considered to be in the public domain when they are not subject to copyright protection.
Ideas: Copyright protects the expression of an idea but not the idea itself. Copyright is only available to an idea that is expressed in a fixed form (i.e. paper or electronic media).
Facts: As with ideas, copyright subsists only in the expression of facts within a work, and not the facts themselves. The facts cited in a newspaper article, for example, are public domain, and can be re-used provided that the re-use does not copy the way the author of the article has expressed them.
Works whose copyright has expired: There are statutory rules to determine when copyright protection of a work comes to an end. Copyright protection – the legal right to reproduce, publish, and sell a work – expires after a period following the death of the work’s author/creator. In Canada, the copyright for a work typically expires 50 years after the death of its creator. After this period has elapsed, the author’s works become public domain.
Q: How do I know if a work is part of the public domain?
A: In Canada copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, plus 50 years following the end of that calendar year – the “life plus 50 rule”. When the term of copyright expires, the work is said to come into the public domain and is then available for anyone to use and copy without seeking permission from the copyright owner. The author retains no rights in the work. This is the reason that Dickens’ books, Shakespeare’s plays, and Beethoven’s symphonies are no longer protected by copyright. A more detailed explanation of how public domain works with respect to different types of works follows.
A. General Information - for greater detail, review the Copyright Act
If the author of a solo-authored work is alive, the work is not part of the public domain. If the author is deceased, add 50 years to the year of the author’s death. Copyright for the author’s works expires on December 31 of that year.
To use an example, Robertson Davies died on December 2, 1995. His works remain protected by copyright until the end of 2045, and become part of the public domain on January 1, 2046.
Works with multiple authors enter the public domain the remainder of the calendar year in which the last author dies plus 50 years.
Works with pseudonymous/anonymous authors enter the public domain either after the remainder of the calendar year of the first publication of the work plus 50 years or 75 years after their creation, whichever comes first.
Posthumous works are works protected by copyright that have not been published, performed in public or communicated to the public during the lifetime of the author(s). The criteria that must be met before these works move into the public domain is set out in the Copyright Act.
In works created for an employer, or works created for hire, in the absence of an agreement to the contrary, the copyright is owned by the employer who commissioned the work. Nevertheless, the work enters the public domain 50 year after the date of author/creator of the worker's death. More details can be found in the Copyright Act.
Copyright in images, as in other works, is subject to expiry after a period following the death of their creator.
Physical prints of photographs (not photos that are re-printed in books or online) enter the public domain under similar terms to other works, with a few potential exceptions:
- photographs taken before 1949 belong to the public domain;
- photographs taken between 1949 and November 7, 2012, inclusive, enter the public domain 50 years after the death of the (last surviving) creator, unless the copyright for the original photograph is owned by a corporation;
- in cases where the photograph’s copyright is owned by a corporation, the photo’s copyright status depends on when it was taken:
- if taken in or after 1962, it enter the public domain 50 years after the death of its (individual) creator;
- if taken before 1962, the photo is in the Public Domain as of 2013.
Photographs and illustrations printed in books enter the public domain depending on their attribution in the larger work:
- if the copyright ownership of the image is stated in the book, the work enters the public domain 50 years after the death of the (last surviving) creator of the photograph or illustration.
- if the copyright ownership is not stated in the book, the work enters public domain 50 years after the death of the author of the book.
C. Government publications
Federal and provincial government (Canada) publications are subject to Crown Copyright protection. Published federal and provincial government publications enter the public domain 50 years after publication. Unpublished federal and provincial government documents do not fall within public domain.
Municipal government publications are not covered by Crown Copyright. Works created by municipal government employees are subject to the same copyright protection and limitations as any other works created in the course of employment, i.e. they enter the public domain 50 years after the death of the author.
D. Adaptation, translations and scholarly editions
Copyright protection emphasizes the expression of an idea, fact, opinion, etc. in a particular form. Copyright can subsist in a reproduction of a public domain work if the reproduced version of that work is itself the product of a sufficient level of original work. For example, the text of Shakespeare’s Romeo and Juliet is part of the public domain, but a recording of a performance or a publication that contains editors’ notes and criticism in addition to the play’s text may still be protected by copyright.
Establishing whether a work belongs to the public domain therefore requires that you understand:
- which version of a work you wish to use (for example, your own photograph of a painting, versus a photograph of the same painting published in a book).
- when the version you are using was created or published.
Q: How can I find works that are part of the public domain?
A. General resources:
Project Gutenberg is a free online collection of works, many of which belong to the public domain. Books are available in multiple formats (PDF, ePub, Kindle, HTML). While many of the works available on Project Gutenberg are part of the public domain, there are also works that are copyright-protected. You can verify the copyright status of any item in the Project Gutenberg collection by clicking the "Bibrec" tab of any catalog entry.
There is a separate Project Gutenberg Canada page dedicated to Canadian authors and public domain content.
The Internet Archive plays host to a huge collection of free texts, audio and video files, and archived web pages. Much of this content is either public domain, or designated for free use under Creative Commons licensing. Use of the content on the Internet Archive is restricted to "scholarship and research purposes only."
The Hathi Trust Digital Library is a massive digital repository with easy-to-use search and browse menus. All items available in the archive "are either in the public domain, have the necessary permissions to support the level of access afforded, or are simply archived in such a way as to ensure an enduring copy of the content."
Flicker: The Commons contains public domain and royalty-free images from such contributors as the Library of Congress, the U.S. National Archives, the Getty Research Institute, and the Smithsonian.
Wikimedia Commons is a database consisting of millions of "freely usable media files" - either public domain or licensed for free use by the copyright owner. The copyright information associated with a given file is displayed prominently toward the bottom of the page.
The Library of Congress Photographic Collection on Flickr contains public domain images from the Library of Congress. Copyright information is displayed under each image.
C. Audiovisual works
The Prelinger Library is the Internet Archive's "moving image archive free movies, films, and videos."
The Petrucci International Music Score Library is an online database of musical scores and recordings. All works included belong to the public domain.