Latest revision as of 00:25, 7 November 2005

Legal basis of copyright in the United States

The creation of a work, such as an image or a piece of writing, automatically creates certain rights to control the use of that work. The original legal basis for United States copyright is the "copyright clause" of the Constitution, Article I, Section 8, Clause 8, which states, in pertinent part, "Congress shall have the power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The United States Congress enacted the United States Copyright Act, codified under Title 17 of the United States Code. The governmental functions of the Copyright Act are administered by the Copyright Office.

Under copyright law, most authors own the rights to limit use of their works. However, not all works fit this description. Exceptions include works in the public domain, which are old enough that either their author is long dead or it was created during a time when copyright was not assigned automatically. Some works created by the government or in other countries are also in the public domain.

Sometimes people wish for a piece of their own work to be freely available to everyone to use with no strings attached, and put the work in the public domain. This isn't very hard to do — the copyright holder merely has to make a statement that they release all rights to the work. Once this irrevocable act is complete they no longer have any power over how the work is used since it is then owned by the public as a whole. Some people (who are these people?) claim, however, that the author is still legally the copyright holder, and has merely granted a "free use" or "public-domain equivalent" license.

It is controversial whether it is possible for a copyright holder to truly abandon the copyright of their work. Some (who does?) claim that under many jurisdictions, a statement disclaiming a copyright or "granting" a work into the public domain has no legal effect whatsoever, and that the owner still retains all rights to the work not otherwise released. The owner would then have the legal right to prosecute people who use the work under the impression that it was in the public domain. It is certainly true that under some jurisdictions (which ones?), it is impossible to release moral rights, though that is not the case in the United States. A more likely problem may be the lack of factual evidence that the owner has indeed put the work into the public domain.

Some scholars of copyright law, including Lawrence Lessig, agree that it is difficult to put works in the public domain, but not impossible. The Creative Commons website, for example, has a public domain dedication form which produces an electronic receipt which is meant to act as legal backing for the dedication. Even if it is ruled that a work cannot be released into the public domain, a thorough dedication such as this one also releases all rights, so that the author retains only a free-use license. Lessig, however, argues that another licensing option, such as the Creative Commons Attribution-Only license, is a safer choice, and that click-through agreements are insufficient to put works in the public domain.

It could be argued that explicitly putting content in the public domain will eventually help to strengthen its legal status, especially in common law jurisdictions -- the more it can be argued that there is a general public understanding of the concept, the more likely it is to be held up in court.

Advice for users of our content

All content on Wikipedia is submitted under the GNU Free Documentation License. Contributors can choose to multi-license their works under other licenses, and users can then choose which license to accept. Many people have also put public domain deeds on their uploaded content or their user pages.

Given the above, it is up to any user of the content to decide whether they consider a public domain deed to be sufficiently legally safe. If not, they can still choose to abide by the terms of the GNU FDL, or another open content license if the uploader has provided multiple options.

However, be wary of images which were not created by one our users but by an external author who claimed to put them in the public domain. These may actually be under a stronger license.

Advice for editors and uploaders

It is not unreasonable to put your content in the public domain, but we advise you to also license it under a CC-BY license or a free-use license if you desire a "softer" fallback than the GNU FDL. Note that all content is licensed by the uploader or editor under the GNU FDL (both on the edit form and on the upload submission form) if they have the rights to do so.

Also, if the work is not yours but the author made a statement releasing it into the public domain, it is recommended (but not required) that you contact them to see if they'll additionally make a statement releasing all rights. If so, add a free-use license tag as well.

The free-use tags that have been created for user contributions are:

• {{CopyrightedFreeUse}}
• {{CopyrightedFreeUse-User}}
• {{CopyrightedFreeUse-Link}}
• {{NoRightsReserved}}
• {{LicenseFreeUse}}
• {{TextLicenseFreeUse}}
• {{ImageLicenseFreeUse}}
• {{TextLicenseMinorFreeUse}}

Links

• Wiki Wiki Web: Public Domain: "The opinion on the OSI license approval discussion list is that it's no longer possible to release your work to the public domain in the USA. Technically speaking, the copyright always stays with you even if you don't claim it anywhere."

• debalie: Public Domain FAQ: "In fact the phrase "public domain" has no legal status at all in the UK."

• A private e-mail from the U.S. Copyright Office sent to User:Dcoetzee that says, among other things, "Please be advised that one may not grant their work into the public domain. However, a copyright owner may release all of their rights to their work by stating the work may be freely reproduced, distributed, etc."

• Wikipedia's article on public domain: "Any work receives copyright by default and copyright law generally doesn't provide any special means to "abandon" copyright so that a work can enter the public domain [ . . . ] A copyright holder can explicitly disclaim any proprietary interest in the work, effectively granting it to the public domain, by providing a licence to this effect. A suitable licence will grant permission for all of the acts which are restricted by copyright law."

See also

• EBWiki: Image copyright tags