Originally posted 2018-11-19 11:20:57

By Eliana Rocchi |


The expression “Public domain” is generally used with reference to the works that belong to everyone and are available for public use. The concept comes from copyright law. It identifies those creative works that are not protected by copyright and thus may be used freely by the public. In other words anyone can copy them or modify them or generally use them in any way they wish.

But when does that happen? Nowadays, copyrights in a work are acquired automatically by its mere creation, with no need for further formalities. So, if the acquirement of a copyright is automatic, how does a work fall into the public domain?

There can be various ways. A copyright can be lost because its term has expired. Copyrights, unlike trademarks, can’t last forever: they usually last 70 years after the death of the last surviving author. The work might fall into specific categories of works that are not protected by copyright law, like ideas, facts, mathematical formulae, methods of production, or works created by the US Government. The work might have been created when some formalities were required and its author failed to satisfy those formalities. Finally, the author could have chosen to dedicate the work to the public, forfeiting any copyrights in it.

So in the public domain, we can find the works for which the rights have expired or never raised, or works that have been dedicated to the public by their authors.

Once a work is in the public domain, the author cannot claim it back. Nor can anyone claim the work as his own and copyright it. If substantial changes are made to the original work, the author will be able to acquire a copyright in the “derivative work” he created, but the original work will remain in the public domain.

This brings us to an important difference between copyright law and trademark law: despite being not suitable for copyright protection, a work in public domain can be trademarked.

This is because trademark protection serves the purpose of helping the public identify a business as a unique source of products or services, so it only protects the uniqueness of the trademark. As opposed to copyright protection which, purporting to protect original creation, provides the author with a long list of exclusive rights. This means that while the owners of a copyright can prevent anyone from using, copying, modifying, distributing, performing and displaying the protected work, the owners of a trademark can only prevent others from using their mark in commerce for identifying similar products or services, but any other use is permitted. For the same reason trademarks, unlike copyrights, can last forever as long as they are used for their purpose.

So words, symbols, colors, designs, etc. that are in the public domain can be used as trademarks and are suitable for trademark protection if nobody is already using them as trademarks. That does not mean that such things leave the public domain. In fact they remain available for being used by the public for any purposes other than as trademarks for a competitor’s products or services.

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