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INTRODUCTION2

Copyright is a balance between authors and users—a balance (as some like to say) between the incentive to create and the imperative to disseminate works of authorship.

Public domain is considered as a negative space, that is, it consists of works that are no longer in copyright term or were never protected by copyright law.

The presence of a robust public domain is an essential precondition for cultural, social and economic development and for a healthy democratic process.

WHAT IS PUBLIC DOMAIN?3

The public domain refers to a vast repository of the basic building blocks of creation, commonplace subject matter, or new entrants to the public domain for which the relevant intellectual property rights have expired.

It comprises abstract subject matter, such as ideas or discoveries, as well as matters that have entered the public domain due to the end of protection or due to standardization.

PUBLIC DOMAIN (contd…)4

The public domain is the realm of “intellectual property-free resources” unprotected either because they were ineligible for protection in the first place or because they have been “freed” by invalidation or expiry of the relevant intellectual property right.

It has the status of an invention, creative work, commercial symbol or any other creation that is not protected by any form of intellectual property.

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HOW COPYRIGHTED MATERIAL PASSES INTO PUBLIC DOMAIN

ORIGINALITY AND PUBLIC DOMAIN

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A work fixed in a tangible form is protected by copyright only if it is original.

However, a work need not be novel, that is, new to the world to be protected. For copyright purposes, a work is original if it is – or at least a part of it – owes its origin to the author.

The originality element has extremely important ramifications for public domain. Because of this requirement, someone who merely makes an exact copy of a public domain work is not entitled to receive a copyright protection on the reproduction.

Something new must be added for the work to be copyrighted. And it is only the new material that is protected and not the unchanged material in the public domain.

AN INSTANCE OF CREATIVE WORK BASED ON PUBLIC DOMAIN

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Actress Emma Thompson created a screenplay from the classic public domain novel Sense and Sensibility, by Jane Austen. In doing so, she added a good deal of new material, including some scenes and dialogues that were not in the novel. She also organized the work into cinematic scenes, cut material that did not fit into the two hour movie, added camera directions and so forth.

Only this new material was protected by copyright. All the material Thompson copied from Austen’s novel remains in public domain.

CREATIVITY IN WORKS IN PUBLIC DOMAIN

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As originality, a minimal amount of creativity is necessary for copyright protection too.

However, the amount of creativity required may not be of a high quality. A work need not be novel, unique, indigenous, or even any good to be sufficiently creative.

Like originality requirement, creativity requirement works to prevent someone who makes an exact copy of the public domain work – for example – a photocopy of a public domain drawing from receiving copyright protection.

Moreover, certain types of changes made to the public domain work though original are not copyrightable because they are not minimally creative. For example, transposing a public domain musical composition form key to another is not minimally creative and such a transposition is not protected by copyright.

EVERY WORK NEED NOT BE COMPLETELY ORIGINAL

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To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined.

But the very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea. Composers recombine sounds they have heard before; playwrights base their characters on bits and pieces drawn from real human beings and other playwrights' characters; novelists draw their plots from lives and other plots within their experience; software writers use the logic they find in other software; lawyers transform old arguments to fit new facts; cinematographers, actors, choreographers, architects, and sculptors all engage in the process of adapting, transforming, and recombining what is already "out there"' in some other form.

This is not parasitism: it is the essence of authorship. And, in the absence of a vigorous public domain, much of it would be illegal.

EXAMPLES10

For example, if a person were to compose a poem closely related to “An Ode to a Grecian Urn” he cannot be said to have had no originality if he had merely kept the basic premise of the poem in mind.

Similarly, if a book is written strongly based on an idea expressed previously, such as a historical novel recounting the lives of a family of black slaves and their descendants, it cannot be said to be a copy having no creativity whatsoever.

CREATING NEW WORKS FROM PUBLIC DOMAIN WRITINGS

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Anyone is free to create a new work based upon a public domain writing – for example creating a screenplay or a stage play based on a public domain work. Such works are called derivative works.

A derivative work is anything that takes a preexisting copyrightable work, regardless of whether this work is in the public domain, and “recasts,” “transforms,” or “adapts” it in some way. The copyright in a derivative work extends only to the author's original contributions, and does not affect the copyright or the public domain status of the preexisting work.

Authors may also create new stories using characters from public domain novels and other literary works.

PUBLIC DOMAIN: A TOOL FOR FUTURE CREATION

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To characterize the public domain as a quid pro quo for copyright or as the sphere of insignificant contributions, however, is to neglect its central importance in promoting the enterprise of authorship. The public domain should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use.

Because authors necessarily reshape the prior works of others, a vision of authorship as original creation from nothing--and of authors as casting up truly new creations from their innermost being--is both flawed and misleading. If this vision is taken seriously, authors would not be granted copyrights without their creative processes being first dissected to pare elements adapted from the works of others from the later authors' recasting of them.

VALUE OF PUBLIC DOMAIN13

Building blocks for the creation of new knowledge, examples include data, facts, ideas, theories, and scientific principle.

Access to cultural heritage through information resources such as ancient Greek texts and Mozart’s symphonies.

Promoting education, through the spread of information, ideas, and scientific principles.

Enabling follow-on innovation, through for example expired patents and copyright.

VALUE (contd…)14

Enabling low cost access to information without the need to locate the owner or negotiate rights clearance and pay royalties, through for example expired copyrighted works or patents, and non-original data compilation.

Promoting public health and safety, through information and scientific principles.

Promoting the democratic process and values, through news, laws, regulation, and judicial opinion.

Enabling competitive imitation, through for example expired patents and copyright, or publicly disclosed technologies that do not qualify for patent protection.

INDIAN SCENARIO

Adaptation of a work from a public domain may also be considered to be original.

The Indian Copyright Act of 1957 defines “adaption” as (i) in relation to a dramatic work, the conversion of the work into a non-dramatic work; (ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise; (iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; (iv) in relation to a musical work, any arrangement or transcription of the work; and (v) in relation to any work, any use of such work involving its re-arrangement or alteration.

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INDIAN SCENARIO (contd…)

As is obvious from this definition, an adaption under the Indian law is basically a change of format such as the conversion of a novel into a screenplay.

It does not take into account an adaptation which is created by adding a significant amount of new material.

In India, the manner in which works are inspired from other works in the public domain would be treated by the courts is extremely unclear.

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INDIAN SCENARIO (contd…)

As the definition of adaptation under Indian law is extremely narrow and limited, this limitation has created yet another grey area in Indian copyright law.

As a result, it is of paramount need to clear the present confusion regarding the issue.

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CONCLUSION18

The purpose of copyright law is to encourage authorship. When we embody that encouragement in property rights for authors, we can lose sight of a crucial distinction: Nurturing authorship is not necessarily the same thing as nurturing authors. When individual authors claim that they are entitled to incentives that would impoverish the milieu in which other authors must also work, we must guard against protecting authors at the expense of the enterprise of authorship.

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