Public Domain: why it is not that simple in Europe

As free culture enthusiasts, the first day of the new year marks a special occasion: Public Domain Day. On this day copyright expires on works that have reached the end of their terms — which, by the way, lasts for a long time — typically the life of the author plus 70 (or so) years. But once their copyrights have expired, illustrations, books, films,music, and other types of content pass into public domain. This means that they can be creatively reused without permission and free of charge.

Announcing The curious and uncommon performances of a monkey &c., Sadler’s Wells Theatre (London, England), , [17 — ], source: Bodleian Libraries, University Of Oxford, CC BY NC SA

Those resources can be a great help to educators, especially those experimenting with different forms of education like online and remote teaching, or those who want to adjust educational materials to meet the needs of particular students.

The rules appear simple

The rules governing when a piece of creative content enters the public domain may seem initially straightforward, but determining whether something is truly in the public domain can result in a swamp of obscure rules, strange regulations, legal complexity, and varying interpretations of exceptions.

In most countries, copyright term is based on the life of the author plus an additional set duration of protection — usually from 50 to 70 years beyond the death of the creator. In Mexico, copyright protection lasts for 100 years after the death of the author. Within Europe there have been attempts to harmonise copyright terms across the Member States for about 25 years now. In theory, the copyright duration has been harmonised to 70 years after the death of the last surviving author. In practice however, each Member State has different public domain regulations.

Transitional provisions in the law, meant to guide Europe to a harmonised term of protection, make it very challenging to determine whether something in the public domain. Also, court rulings and additional laws make it very difficult to say with confidence whether a particular piece of content is definitely in the public domain.

The Curious Case of The Anne Frank Diary

In the Netherlands, copyright lasts for 70 years after the death of the author. Since the author of the famous Holocaust story Anne Frank was killed in 1945, this would put her diary in the public domain on January 1st of this year. However, during the course of a court case between the Anne Frank Stichting (who exploit the Achterhuis) and the Anne Frank Fonds (who exploit the copyright), it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037.

The Little Prince and the World War

Despite the harmonisation of the copyright term across Europe, there’s an interesting type of term extension for some French authors. Authors who fought for France during the First and/or Second World War get an extension on their copyright to compensate the loss and difficulties in the commercial exploitation of works during that time.

The Little Prince, Antoine de Saint-Exupéry, public domain

The length of the extension was determined by curious means (depending on factors like whether the author in question died during the war, or fought and died after the war ended). Because of the fact that Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea, the entry of his his best-known novel The Little Prince into public domain in France oscillates from 1 May 2033 to 1 January 2045.

The Curious Case of Peter Pan

The copyright on the famous book Peter Pan should have expired on January 1st 1988, 50 years after JM Barrie’s death (which at the time was the copyright term in the United Kingdom). In 1996 copyright law was revised due to EU legislation, which extended the term of protection to the author’s life plus 70 years. This would mean Peter Pan should have been in the public domain beginning January 1, 2008.

However, there is a special exception in the UK Copyright Act which states that Peter Pan is under perpetual copyright, and the royalties for performances, adaptations, publications and broadcast of Peter Pan are to be paid to a London Children’s Hospital, for as long as the hospital exists.

False records for death dates

Janusz Korczak, a Polish-Jewish educator, children’s author and pediatrician, was killed in 1942 in Treblinka Nazi Camp. In the official documents his year of death was established as 1946 — which was commonly used at that time by the courts as the official year of death for people whose deaths came as a result of the war. This is because it was very difficult to determine who died exactly when during the confusing time of the war. Finally, after 3 years of legal battles, a Polish court recognized the real date of his death, and all of Korczak’s works entered the public domain last year.

Staff and children of Nasz Dom (Our Home) Orphanage, run by Maryna Falska and Janusz Korczak in Pruszkow at Cedrowa Street, public domain

Beware of trademarks and other laws

Copyright protection is not the only form of legal protection for works. Even if a work is in the public domain because its copyright has expired, other types of rights in the creative work may be protected under trademark, database, or unfair competition laws. This applies to the French and Dutch cases discussed above.

Last summer, in the case of Anne Frank Diary, the Office for Harmonization in the Internal Market (OHIM), which is the trademark and designs registry for the internal market of the EU, ruled out that the title “Le Journal d’Anne Frank” is sufficiently distinctive to be registered as a trademark.

However, all of the characters and illustrations from The Little Prince are registered as separate trademarks by the author’s heirs. Over the next few years, only those rights holders will be able to benefit from the production of souvenirs containing an image of a character which appears in the novel, or decide on if and how they will give permission to use those images in various forms of creative works.

Never give up

So, dear teacher, if you are searching for public domain works to use, be aware that there are also many other traps that you can fall into. That is why Communia has been fighting for positive changes in copyright that will protect public domain from appropriation and underuse.

Copyright reform can take us some time. In the meantime, remember there is a variety of websites like Wikimedia Commons, National Gallery of Art or New York Public Library, where you can find resources in high resolution verified as public domain.

Europeana Public Domain Calculator can help you navigate through the complexity of national copyright law. With this tool you can establish, whether or not a given work is in the public domain in a given European country.

How to protect the public domain? What do you think can be done to fix copyright? Please comment below. The next text will be published in two weeks, so please subscribe to Copyright Untangled.