The Many Faces of the Public Domain
Edited by Charlotte Waelde and Hector MacQueen
Chapter 9: The Public Domain and the Creative Author
Bill Thompson 1 Introduction The public domain is little understood, rarely defended in the public prints and under constant attack from those who would have all works of the human imagination kept under lock and key through a combination of perpetual copyright and technological protection measures. Even while it persists it is often hard to determine whether a particular piece of work is in the public domain, and since the rules differ in different jurisdictions the status of all but the most obvious – for which read ‘older’ – works must often be considered questionable. The idea of the public domain is not well defined in English and Scottish law and serves only as a catch-all for the collection of works whose use is not constrained by law – the inverse of the set of ‘works in copyright’. It is not even mentioned in the discussion of copyright in McNae’s Essential Law for Journalists, the standard text for UK journalism students. Clarity over its applicability is even further diminished by its rather cavalier use in the press, where it is often called on as a longhand version of ‘public’, One advocate of a much stronger approach to copyright is Bruce Lehman, Commissioner of Patents for President Bill Clinton. Speaking in 1995 he said: ‘Creators, publishers and distributors of works will be wary of the electronic marketplace unless the law provides them the tools to protect their property against unauthorized use’ and ‘Creators and other owners of intellectual property rights will not be willing...
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