Copyright & Patents/Public Domain


QUESTION: If a work is in public domain, does this mean that anyone can slap their name on it and pretend the work is their own? Or do they still have to give proper credit to the author?

What is the purpose of Public Domain anyway? I have heard that it fosters new creative works, but I do not see how. All I see is that it will foster derivative works, and nothing more.

So, I am not sure there is even a need for Public Domain.

ANSWER: Kathy,

This is an excellent question.

When technology enters the public domain, that means anyone can use the technology without being concerned of infringing the Patent, which has lapsed.  You can make improvements to the technology, patent the improvements, and anyone who makes, uses, or sells the improved product within the territory where the patent has issued will be infringing your patent.  Of course, if they just use the core technology (and not your improvement) there is no infringement.

Of course, I would be committing a fraud if I said that I invented the laser or the cellphone or the Internet when clearly, I did not.

When a copyright enters the public domain, anyone can publish the work without paying the original author any royalty.  For example, the copyrights on all of Shakespeare's works have expired long ago.  You see many publications of the "Complete Works of William Shakespeare" in gold-leaf sets.  The heirs of Shakespeare receive nothing from such works.

However, it would be "plagiarism" to duplicate any verse of these works and pass it off as your own.

When a work or technology enters the public domain, it means that said work or technology is available to the public to use free of charge.

Kathy, I hope this helps.

My best regards,
  --Gerald R. Black
    Attorney and Counselor

---------- FOLLOW-UP ----------

QUESTION: Thanks for your explanation. However, I do have two follow-up questions:

1 When it comes to literary works, aren't most books available in libraries even though copyright is still attached?

2. Can descendants or heirs prevent a work from entering public domain?


ANSWER: Kathy, just because a book is in the library does not mean that it is in the public domain.  The library has just bought a copy of the book and is making it available to its patrons who want to check out books.

Currently, the term of a copyright in the U.S. is the life of the author + 70 years.  The copyright term varies from country to country, depends upon the nature of the work, and depends upon when the work was created.

Of course, after the author dies, if the hies have no interest in the copyright, they can give it to the public, thereby shortening the term.  But, the heirs cannot extend the term of the copyright beyond the designated term.

Good luck with your project, Kathy.

My best regards,
 --Gerald R. Black
   Attorney and Counselor

---------- FOLLOW-UP ----------

QUESTION: Actually, my point was that although copyright is still attached to a book, it is still freely available through a library so Public Domain is not always necessary to enjoy something for free. Many people argue that if Public Domain did not exist, that we would not have free access to many works. However, that is not necessarily the case.

It's a shame that the heirs cannot benefit from their ancestors though.

However, you've been very helpful. Thanks.


I was not particularly clear on the point about a library and "public domain".

If you buy a book, read it and enjoy it and pass it along to a friend, who reads it and passes it along to another friend, and so on -- the author/publisher have sold but one copy of the book, but many have read it.

In a perfect world, everyone who reads the book, pays the author some sort of royalty.  A library acquisition is but one way that the system breaks down.

Whether you give the book to a friend or merely loan the book to a friend, the author has only sold the one copy and you are being a good friend.

I wrote a book about 11 years ago about patent searching.  I published it myself and sold it online.  Several people approached me to put an electronic version of the book online, and I refused.  I reasoned that once the book is online electronically, it can be transferred anywhere in the world by pressing a button.  I did not want to lose control over something that I had labored so long and so hard over.  

The book is on my website and needs to be updated.  Copies of the Book are at the New York City Public Library, Boston Public Library, MIT, and Caltech.

And, of course, now there are e-books.

There are two things that survive you -- your children/grandchildren; and anything that you publish.  Many people publish for free on the Internet for this reason.

Kathy, I hope this helps.

My best regards,
 --Gerald R. Black
   Attorney and Counselor  

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Gerald R. Black


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Registered to practice before the U.S. Patent Office Admitted to Practice Law in Michigan, California, and Ohio

Capital University Law School - JD University of Cincinnati - BSME

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