A work is not protected by the copyright is not automatically be part of the public domain, it maybe protected by other statute. Thinking of every limitation upon the exclusive rights of copyright will also create a limited public domain. 16 Because of the expansion of the copyright law threatened the healthy public domain, several authors have suggested creating a “theory of the public domain,” nevertheless maybe it just a harder work, for they even could not articulate exactly what the parameters might be.Lange said that the copyright law itself has evolved a proper balance between protection and nonprotection, it seems to be in a state of reasonable equilibrium, it is the creation of various new theories of protection which made the copyright keep on expanding, the portion which are under protection is expanded, at the same time, it is “Remarkably little direct attention has been paid to the public domain in recent years. “18 People are used to caring about what they are willing to protect, when a new work produced, people are anxious to put it under control, thus always ignore those free from protection.The portion which is not under protection is remaining the same or even reduced, the proper balance in the original copyright law will surly be broke. If we tried to find in the legal literature, it is almost no one there to protect the public domain, and the copyright scholars even seldom pay any attention to it.
So as Prof. Lange suggests, we must identify the public domain by their “low protectionist bias. “19 Justice Kaplan concerned about the “excessive reification” of copyright principles, such as the “property law analog” or the “cult of originality.”But reification of the public domain is not seems a good idea for such a theory will limit the domain itself. Later Prof.
Litman defines the public domain as the “commons that includes those aspects of copyrighted works which copyright does not protect”, it does not seem to make any progress, this negative definition based upon what is not protected by other legislation. Once the scope of the copyright expanded, (if there is any clear scope), the public domain will reduce without any doubt.As to Patterson and Lindberg, they do not suggest a “theory” of the public domain, but argue for a cautious interpretation of the scope of copyright law based upon their reading of history and policy. 21 These entire proposals make the public domain become a more complex and difficult area, no idea for exactly what is the parameters, moreover, people even more confused.
It seems too hard to have a consolidated theory, just like Prof. Litman concludes that “This hodgepodge of unprotectible matter was without overarching justification then, and it remains so today.”Moreover as we can see in the following part, the three different categories which will automatically fall in the public domain, that is (1) Public domain through expiration of copyright; (2) Public domain through forfeiture or unclaimed of copyright; (3) Works categorically excluded from copyright. Each of them is being treated by different legal theories, or by different legal standards, or is justified by different public policies, so the illusion to create a general theory of public domain is unrealistic.It is better to focus on the fact of each cases, it is no point to compare the scenario in each different case. Before looking at each of the three categories, we should bear in mind that with each extension of the federal statute into new subject matter, there has been a diminution in works that are automatically considered as part of the public domain.
As we can see below, it is clearly represented a continual expansion of protected rights and a decrease in the works that are part of the public domain.The original Statute of Anne had been characterized as creating of a public domain by limiting the duration of protected works and requiring for formalities,24 but as the law developed, the history of copyright law could be looked as a gradual expansion of the subject matter and the rights granted to owners. 25 The extension and further extension of the private right in copyright “pluck the works which firmly rooted in the public domain back to the private ownership”. 26 C. Categories of public domain 1. Public Domain through Expiration of CopyrightThe protect works of authorship has a time limited, once the intellectual property for which the term of protection has run its full duration, the collection of works in which copyright has expired is unavoidable enter into the concept of public domain. In fact, it just a small portion. The justification for copyright is “a social contract, in which an author is granted exclusive rights in exchange for eventual dedication to the public domain”.
27 The particular case is when the author is dead and the copyright has expired the limited time, the works is public domain, the rights of copyright are owned by irrelevant person.Nevertheless, since no specific regulation for how long the duration could be, in the name of the best interests of the deceased author, the duration of copyright protection is extended to an incredibly situation which in many cases the time last for a considerable seventy years after the death of the author of the work, nevertheless will the author be enhanced any incentive to create just because their work will be protected for many decades after his death? This reason for extension seems lack of persuasion and too pale.The very important result for the extension is to limit the scope of the public domain without question. Under the Copyright Act 1911 and the Copyright Act 1956 unpublished works were protected in perpetuity. The following CPDA codified all pre-existing copyright rules, abolished potentially perpetual copyright, and ruled that the unpublished works the author of which had already died, the protection has a finite term of protection of 50 years from the end of the year in which the Act came into force.
Under the following Copyright and Related Rights Regulations 1996, the protection for a previously unpublished work could potentially be extended for a further 25 years following the end of the copyright term. 29 As a result, in some special circumstance the copyright will last for hundreds of years. It is long been argued the right of first publication of a work is an essential component of the moral right of an author. Therefore, if copyright law system were being designed ab initio, it is obviously little reason for introducing especially long periods of protection for works unpublished in an author’s lifetime.In the American cop It is also sometimes argued that the right of first publication of a work is an essential component of the moral right of an author, the duration has been extended from a term of 14 years in the copyright act of 1790, (assuming that all formalities were met, and subject to renewal for another 14 years) to a term of the life of the author plus 50 years in the 1976 Act.
Furthermore the Copyright Office recently even announced considering an extension of copyright to life plus 70 years.30 In such especially long period of copyright, the author’s right is almost perpetual; he could actually enjoy the economic value as a whole, the public domain thus almost meaningless. Such long duration may have a detrimental impact on literary, and other, forms of scholarship. By the time when the copyright works finally enter into the public domain after 50 or 60 years following it was made, it is pretty possible that they are of little practical value, because nowadays, the development in scientific discovery, innovation and technological improvement in the industrial society is too rapid to follow.Will a computer program of great economic value after 50 years? Almost everyone will say ‘no’ without any doubt. It is true much knowledge may be of little rivalrousness in a competitive market, even long before the expiry of the term of protection.
31 The interest in unfettered enjoyment of private property is often outweighed by powerful competing public interests. But if the author has dead many decades, will it be of any point for the dead people enjoy any right? In this kind of circumstance, the public interest in free access to significant historical works outweighs the obligation to enforce copyright.If there is a theory of the public domain, it could provide some basic idea for the limitation, but still be of little help to say about what exactly the duration should be.
B. Public Domain through Forfeiture or unclaimed of Copyright Sometimes copyrightable works is failed to qualify for protection, or lose that protection, on the ground failure to comply with technical formalities which leads to the intellectual property forfeited, this constitute the significant part for public domain. Any noncompliance with those formalities will leads to loss of the owner’s copyright.
But the requirements for obtaining and retaining federal copyright protection is eliminated in recent years, meanwhile the copyright subject matter are expanding very fast. In the UK, the 1911 Copyright Act abandoned all requirements concerning any formalities. It came into existence when a work is fixated or recorded in any permanent way. 33 Infringement was also expanded to include translation and adaptation as well as reproductions ‘in a material form’. 34 Furthermore, the 1956 Copyright Act extend the scope of copyright to encompass sound and sound television broadcasts, as well as typographical formats of published editions.The right given to the copyright owners were significantly expanded in the 1988 Act, by the introduction of a distribution right and a rental right, and a new category of non-assignable ‘moral rights’ for authors, the combination of performers’ rights, the creation of the unregistered design right, etc.
In the American, in the year of 1988 the requirements for obtaining and retaining federal copyright protection are virtually eliminated. “People don’t bother asking if copyright exists in a work: it does. Don’t bother to claim the status of an innocent infringer: there are no innocent infringers.The work is fully protected by copyright. there is a distinction between the “forfeiture” of copyright, through failure to meet statutory formalities, and “abandonment” of copyright by way of voluntary relinquishment of a known right. 37 In one sense copyright is property, and any abolition of such interests is expropriation, under the ECHR, people are free from expropriation38. And an owner is free to dispose of personal property as he will, including by way of abandonment.
Thus an important component of the public domain has now been eliminated.