Public Domain

The Environmental Commons

One important element of the public domain is the idea of the “commons.” In particular, there is an ideological tension between advocates of the public domain, who [Page 1728]support the promulgation of collective rights, public goods, and other shared resources, and those who advocate the establishment and ownership of private property. This tension often arises out of concerns about the “tragedy of the commons,” as posited by Garret Hardin and others, when the interests of private property owners impinge on the commons. The absence of specified, enforceable property rights encourages overuse of the commons by private interests. Examples include overfishing of unregulated public fishing grounds or building of private condominiums that restrict access and views of a public beach.

Environmental nongovernmental organizations (NGOs) operating in civil society tend to regard themselves as advocates for “public rights” to protect the commons, in the belief that these groups “speak” for species who lack voice and legal standing. In contrast, libertarians argue that the commons should be privatized so that property rights can be enforced to save community resources. They point to the work of Ducks Unlimited in buying up threatened wetlands to set aside habitat for waterfowl (and hunters). Disputes over government policies that provide extractive industries, such as timber and mining, with partial access to public lands suggest that privatizing the commons will remain a controversial public policy issue.

Creative Works

In the United States, certain works do not qualify for copyright protection, and therefore exist in the public domain. These include creative works that consist entirely of common knowledge, facts, or symbols, such as tables, lists, and measurement standards. Works that have been performed or presented but that have not been recorded or otherwise “fixed in a tangible form of expression” also exist in the public domain.

Creative works that are owned or produced by the federal government automatically exist in the public domain and may not be copyrighted. Artistic interpretations of these works may be copyrighted. For example, a painting based on an astronaut's photograph of a manned space mission may be copyrighted, but the original photograph exists in the public domain.

The various laws and rulings of the U.S. government also exist in the public domain. Various publishers of legal databases and manuals have successfully asserted copyright control over their indexed and annotated versions of federal legislation and jurisprudence.

When a publisher or rights holder fails to renew the copyright on a work, the work lapses into the public domain. These are commonly referred to as “orphaned” works.

Slogans, trade dress, and other marks may be protected through trademarks and service marks but may not be copyrighted.

The proposed WIPO (World Intellectual Property Organization) Treaty on the Protection of Broadcasting Organizations would allow broadcasters to copyright their transmissions for 50 years. This includes the transmission of public domain works. One criticism of this treaty is that it effectively creates an endless copyright, allowing broadcasters to remove works from the public domain through systematic retransmission. The proposed treaty also applies to Webcasting or narrowcasting, which is the transmission of materials to a self-selected audience over the Internet.

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